Public
Policymaking
An Introduction
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Public
Policymaking
An Introduction
Eighth EDITION
JAMES E. ANDERSON
Texas A&M University
Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States
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Public Policymaking:
An Introduction,
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James E. Anderson
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Contents
Preface
Chapter 1
ix
The Study of Public Policy
The Plan of This Book 2
What Is Public Policy? 6
Categories of Public Policies 10
Approaches to Policy Study 19
Methodological Difficulties in Studying ­Public Policy
For Further Exploration 33
Test Your Knowledge 33
Suggested Readings 33
Notes 34
Chapter 2
The Policy-Makers and Their
Environment
1
30
37
The Policy Environment 41
The Official Policy-Makers 50
Nongovernmental Participants 61
Levels of Politics 73
CASE STUDY The Endangered Snail Darter 78
For Further Exploration 80
Test Your Knowledge 81
Suggested Readings 81
Notes 82
Chapter 3
Policy Formation: Problems,
Agendas, and Formulation
87
Policy Problems 89
The Policy Agenda 95
The Agenda-Setting Process 98
Nondecisions 106
The Loss of Agenda Status 107
Two Cases in Agenda Setting 108
CASE STUDY Coal-Mine Safety 108
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vi
Contents
CASE STUDY Environmental Pollution Control 112
The Formulation of Policy Proposals 114
Policy Formulation as a Technical Process 120
CASE STUDY Formulating Policy: The Patient Protection
and Affordable Care Act 122
A Concluding Comment 127
For Further Exploration 128
Test Your Knowledge 128
Suggested Readings 128
Notes 129
Chapter 4
Policy Adoption
133
Theories of Decision-Making 134
Decision Criteria 140
The Public Interest 150
Styles of Decision-Making 153
Presidential Decision-Making 161
CASE STUDY Policy Adoption: Consumer Bankruptcy 165
CASE STUDY Policy Adoption: The Family Smoking
­Prevention and Tobacco Control Act 172
For Further Exploration 174
Test Your Knowledge 175
Suggested Readings 175
Notes 175
Chapter 5
Budgeting and Public Policy
The Budget and Public Policy 181
Fiscal Policy 187
The National Budgetary Process 188
CASE STUDY The Struggle to Balance the Budget
For Further Exploration 220
Test Your Knowledge 221
Suggested Readings 221
Notes 222
Chapter 6
180
207
Policy Implementation
Federalism and Implementation 227
CASE STUDY The Elementary and Secondary Education Act
225
229
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Contents
vii
Who Implements Policy? 232
Administrative Organization 239
Administrative Politics 243
Administrative Policymaking 249
CASE STUDY The Nuclear Waste Disposal Act 258
CASE STUDY The Total Maximum Daily Load Program 259
Techniques of Control 261
CASE STUDY The Clean Air Act’s Emissions-Trading System 272
Compliance 273
For Further Exploration 282
Test Your Knowledge 282
Suggested Readings 283
Notes 283
Chapter 7
Policy Impact, Evaluation,
and Change
Policy Impact 290
Policy Evaluation 295
Policy Evaluation Processes 299
CASE STUDY The GAO and Food Safety 302
Problems in Policy Evaluation 307
Policy Evaluation: The Use and Misuse of
Cost–Benefit Analysis 311
CASE STUDY The Politics of Evaluation: Head Start
Policy Termination 321
CASE STUDY The Policy Cycle: Airline Regulation
and Deregulation 325
For Further Exploration 333
Test Your Knowledge 334
Suggested Readings 334
Notes 335
Chapter 8
Notes
Index
Reflections and Observations
290
317
341
352
355
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Preface
In Public Policymaking: An Introduction, Eighth Edition, the policymaking
process is presented as a policy cycle—a sequence of functional activities
beginning with problem identification and agenda formation, and continuing
through the evaluation of policy, which may result in the continuation, modification, or termination of policy. This may restart the policy cycle in a search
for alternatives for handling a problem.
The policy cycle schema is a workable and flexible approach to the study
and analysis of public policymaking, whether in the United States or elsewhere. In addition, the text looks at some other ways to study policy formation
(e.g., group theory and elite theory); makes some comparisons with action in
other countries; and delves into some of the logistical aspects of policymaking,
such as majority building, cost–benefit analysis, and decision-making.
Since the seventh edition of this book was written, various noteworthy
changes or developments have occurred in American government and ­public
policy. National budget deficits soared because of the Great Recession and
then began to decline. The Patient Protection and Affordable Care Act and the
Wall Street Reform and Consumer Financial Protection Act were enacted. The
Democratic Party, which won control of both houses of Congress in 2008, lost
control of the House of Representatives in 2010 to the Republicans, partly
because of the Tea Party. The long American combat involvement in Iraq
has finally ended, although violence in that country has not. The long war in
Afghanistan is now winding down, at least as far as American participation is
involved. In 2012, President Barack Obama decisively won a second term.
The Obama administration has a more leftward tilt than the predecessor
George W. Bush administration. In Congress, however, polarization of the
political parties has intensified. The increased opposition of the Republicans,
especially in the House, to anything “Obama,” has made stalemate commonplace in Congress, which is often referred to as a dysfunctional body.
The fundamental structure of the policymaking process remains as before.
However, in the last few years not much of significance has made the journey
through the policy cycle. That said, I believe the policy cycle approach remains
useful. For instance, it can be used in the analysis of executive policymaking,
which seems likely to gain greater usage in the Obama administration.
As the subtitle indicates, Public Policymaking: An Introduction is intended
to be a starting point for the study of public policymaking by giving some
consideration to all of the stages or phases of the policymaking process. For
those who wish to explore various stages more deeply, the suggested readings
and websites listed at the end of each chapter will be helpful. After decades of
studying the policy process, I still have much to learn.
ix
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x
Preface
While I am fully equipped with opinions on policy and politics, I have tried
to be impartial and objective in my treatment of the many topics covered in
this book. I have been informed, and I think with considerable success, by the
principle of “intended neutrality” in writing this book. Analysis rather than
advocacy and teaching rather than preaching have been my goals.
Organization and Updates
I have made many changes, updates, additions, and a few deletions
in this revision, taking into account new developments in public policymaking, especially at the national level in the United States. I have also benefitted
from recent additions to the scholarly literature on public policy formation.
The basic framework of the book, however, remains intact.
Chapter 1, “The Study of Public Policy,” has new material on distributive
policy, elite theory, and the application of various policy approaches to the
Wall Street Reform and Consumer Financial Protection Act.
Chapter 2, “The Policy-Makers and Their Environment,” surveys the political environment, or context of policymaking, and presents the official and
unofficial participants in the policy process. Material has been added on political culture, social change, the President, and the communications media.
I retained the Snail Darter case, because though old, it is seminal.
Chapter 3, “Policy Formation: Problems, Agendas, and Formulation,”
examines policy problems and agendas, agenda-setting processes, and the formulation (or crafting) of policy proposals. These are the pre-adoption aspects
of the policy process. Here one will encounter new material on policy problems, issue definition, agenda denial, an updating of coal mine safety and pollution control, and a new case study of the Affordable Care Act.
Chapter 4, “Policy Adoption,” centers on decision-making processes and
criteria and the adoption of policies. Here one will find new and/or updated
material on public opinion, filibustering in the U.S. Senate, and the Israeli
election. A new case study is included on the Family Smoking Prevention and
Tobacco Control Act.
Chapter 5, “Budgeting and Public Policy,” discusses the national budgetary
process because of its importance for the substance, implementation, and impact
of public policies, which I try to make more apparent. ­Budgetary numbers are
updated. There is a new example on the ever-popular Animal and Plant Health
Inspection Service and on the budgetary process, per se. The ongoing saga of the
struggle for a balanced budget, which becomes more partisan, complicated, and
seemingly hopeless as time goes on, has been modified and updated.
Chapter 6, “Policy Implementation,” roams over much ground to provide
understanding of the implementation or administration of public policies.
Changes here include new material on the President and implementation,
agency rule-making, the failed Nuclear Waste Disposal Act, tax expenditures,
and “libertarian paternalism.”
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Preface
xi
Chapter 7, “Policy Impact, Evaluation, and Change,” probes the effects of
policies, their evaluation, and possible termination. Numerous limited modifications, additions, and deletions have been made here. There is more on
food safety, Head Start, and policy termination. The concluding case study
on ­airline deregulation has also been updated. Does the air traveler in coach
really feel better off?
Chapter 8, “Reflections and Observations,” goes beyond stating conclusions. It is, rather, an informative essay on the American policymaking process, adding new information to the topic.
Companion Website
An exciting feature of this edition is the text’s companion website,
which provides additional resources for instructors and students. The Instructor website includes PowerPoint slides for classroom presentations, ideas for
classroom activities, suggested paper topics, and an Instructor’s Manual, while
the Student website has flashcards for reviewing text terms, crossword puzzles, tutorial quizzes, and chapter outlines. Access the companion website at
login.cengage.com.
Acknowledgments
I wish to express my appreciation to all who have assisted in the preparation of this edition. At the request of Cengage Learning, several scholars
provided pre-revision reviews. They provided many good ideas and suggestions
for change and improvement. I did not agree with everything that came at me,
nor was I able to respond positively to some of their recommendations. Overall, though, they helped greatly in this revision. My thanks go to the ­following
professors for reviewing the text and offering their evaluations, comments,
and suggestions:
Mike Abels (University of Central Florida)
Jeffrey M. Brauer (Keystone College)
William Doyle (Vanderbilt University)
Shankar Prasad (NYU Wagner)
Stephen Sussman (Barry University)
Various colleagues at Texas A&M University and elsewhere were providers
of information and advice. Carrie Kilpatrick, in her usual pleasant and agreeable style, quickly and accurately converted my handwritten copy into good
typescript. Alberta (Mrs. Anderson) kept me on track to complete the revision.
She has been a source of support for my scholarly endeavors and a positive
influence on my life for several decades. At Cengage Learning, Carolyn Merrill
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xii
Preface
and Eireann Aspell helped to get the revision underway, kept me in motion,
and otherwise helped to bring the project to a successful conclusion. Thanks
go to Jeffrey M. Brauer (Keystone College), who has written the Instructor’s
Manual for this edition. Also, much appreciation to my development editor,
Jean Findley, at LEAP Publishing Services, Inc.
Any shortcomings in the book—errors of fact or faulty judgments—are
my own doing, so responsibility for them is mine. I would appreciate readers informing me about them. “Sock it to me,” as President Richard M. Nixon
once said on the television program Laugh In.
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1
The Study of Public Policy
I
n the course of their daily lives, people are affected, directly and ­indirectly,
obviously and subtly, by an array of public policies. Take, for example,
­automobile owners. When a car is purchased, the Truth in Lending Act ­requires
provision of accurate information by a lender on the cost of credit. The vehicle
features safety equipment, such as a padded dash and seat belts, required by
the National Highway Traffic Safety Administration, and a catalytic converter
to reduce tailpipe emissions, necessitated by Environmental Protection Agency
(EPA) rules. Out on the highway, financed jointly by the state and national governments, our driver needs to be aware of state and ­local traffic regulations or
risk direct contact with law enforcement officials. State policy requires that the
automobile be insured and that both it and the driver be licensed. The price of
the gasoline it consumes is indirectly affected by ­national energy policies and
directly increased by national and state excise taxes. The vehicle’s gas mileage
must meet the national corporate average fuel economy (CAFE) standard or a
“gas guzzler” tax will apply. Many more laws and rules apply to automobiles.
Public policies in a modern, complex society are indeed ubiquitous. They
confer advantages and disadvantages; cause pleasure, irritation, and pain; and
collectively have important consequences for our well-being and happiness.
They constitute a significant portion of our environment. This being so, we
should know something about public policies, including how they are formed,
budgeted, implemented, and evaluated. There are also scientific, professional,
and political reasons for studying public policies and policymaking.
Scientifically, the systematic and rigorous study of the origin, development,
and implementation of public policies will enhance our knowledge of political
behavior and governance, as well as of public policy per se. How is policymaking affected by federalism and the separation of powers? Were pressure groups
or public opinion or the media influential in the adoption of a policy? Why did
government cease to confront a problem? Concern with questions of this sort
are designated as policy study.
1
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2
1
The Study of Public Policy
Professionally, a person may pursue a career as a policy analyst or evaluator. Practitioners of policy analysis, which draws heavily upon economic theory
and statistical and mathematical analytical techniques, have been growing
in number in recent decades.1 Policy analysis has an applied orientation and
seeks to identify the most efficient alternative (i.e., the one that will yield the
largest net social benefit) for dealing with a current problem, such as the control of air pollution or the disposal of household garbage. A variant of policy
analysis is evaluation research, which assesses how well policies attain their
goals and the other societal effects that they may have. Cost–benefit analysis
and risk analysis fall into this category.
Politically, many people want to engage in policy advocacy, using knowledge of public policy to formulate and promote “good” public policies that
will have the “right” goals, that is, goals that serve their purposes. They may
think of themselves as liberals, conservatives, libertarians, communitarians,
or socialists and disagree greatly in their notions of what is good or just. The
research efforts of policy advocates are frequently skewed by their wish to generate data and analysis in line with their preferences. In contrast, policy study
is motivated by the intent to be impartial.
This book draws on the scientific policy studies approach to develop a
basic understanding of the policymaking process, which is here viewed as
an inherently political process involving conflict and struggle among people
(public officials and private citizens) with conflicting interests, values, and
­desires on policy issues. In describing and analyzing the policymaking process, the scientific policy studies approach has three basic aims.2 First, its
primary goal is to explain the adoption of a policy rather than to identify or
prescribe “good” or proper policy. Analysis, rather than advocacy, is its style.
Second, it searches for the causes and consequences of public policies by
applying ­social-scientific methodology, which is not restricted to the use of
quantitative data and methodology. At a minimum, it requires that one should
strive to be rational, empirical, and objective. Third, this approach aims to
develop reliable theories and explanations about public policies and their
­politics. Thus, policy studies can be both theoretical and relevant to the more
practical ­aspects of policymaking. It has been said that nothing is as practical
as a good theory.
The Plan of This Book
There is not a single process by which public policies are formed.
They do not come off an assembly line as do automobiles, refrigerators, and
other standard products. Rather, variations in the subjects of policies will produce variations in the style, techniques, and politics of policymaking. Foreign
policy, taxation, health-care financing, surface-transportation policy, occupational licensing, and land-use zoning are each characterized by a somewhat
different policy process—different participants, procedures, decision rules,
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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The Plan of This Book
3
political patterns, and more. There is a case to be made for the argument that
policy determines politics, though I do not fully subscribe to it.
Policymaking may also take different forms, depending upon whether its
organizational venue is a legislature, the White House, the judiciary, or an
­administrative agency. Policymaking within agencies is more likely to feature
hierarchy, secrecy (or low visibility), and the involvement of experts or professionals than is legislative policymaking. Courts do not act in the same way that
legislatures or executives do. And certainly one can discern different patterns
in tax policy formation in the United States, Great Britain, and Greece.
This variability does not mean, however, that there are no common functions or elements and that it is impossible to formulate generalizations on policy formation. Given the diversity and complexity in policymaking processes,
the development of some sort of “general theory” that has broad explanatory
power is an unrealistic aspiration.3 But we can achieve a useful start toward
what political scientists call “theory building” by striving to develop sound
generalizations about such topics as who is involved in policy formation, on
what sorts of issues, under what conditions, in what ways, and to what effect.
Nor should we neglect to ask about how policy problems develop or obtain a
place on governmental agendas. Such questions are not as simple as they may
first appear.
To provide a conceptual framework to guide the examination of the policy
process in the ensuing chapters, I view it as a sequential pattern of activities
or functions that can readily be distinguished analytically although they may
be empirically more difficult to pull apart. The following categories or stages
are employed (see their portrayal in Table 1.1). Some illustrative questions are
included.
1. Problem identification and agenda setting. The focus here is on how the
problems that may become the targets of public policies are identified
and specified. Why only some problems, out of all that exist, receive
consideration by policy-makers requires an examination of agenda
setting, that is, how governmental bodies decide what problems to
address. What is a public problem? Why does some condition or matter
become a public problem? How does a problem get on a governmental
agenda? Why do some problems not achieve agenda status?
2. Formulation. This encompasses the creation, identification, or borrowing
of proposed courses of action, often called alternatives or options, for
resolving or ameliorating public problems. Who participates in policy
formulation? How are alternatives for dealing with a problem developed?
Are there difficulties and biases in formulating policy proposals?
3. Adoption. This involves deciding which proposed alternative, including
taking no action, will be used to handle a problem. In American
legislatures this function is performed by majorities. How is a policy
alternative adopted or enacted? What requirements must be met? Who
are the adopters? What is the content of the adopted policy?
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4
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Getting the government to consider
action on the
problem
Common sense
Efforts by the government to determine whether the
policy was effective
and why or why
not
Did the policy work?
Application of the
policy by the government’s administrative machinery
Applying the government’s policy to the
problem
Development of
Development of
support for a spepertinent and
cific proposal so
acceptable proposed
that a policy can
courses of action for
be legitimized or
dealing with a
authorized
public problem
What is proposed to
be done about the
problem
Getting the government to accept a
particular solution
to the problem
Stage 5:
Policy
Evaluation
Stage 3:
Policy
Adoption
Stage 4:
Policy
Implementation
Stage 2:
Policy
Formulation
Source: Adapted from James E. Anderson, David W. Brady, and Charles Bullock III, Public Policy and Politics in the United States, 2d ed. (Monterey, CA:
Brooks/Cole, 1984).
Those problems,
among many, that
receive the serious
attention of public
officials
Stage 1:
Policy
Agenda
Definition
Policy Terminology
The Policy Process
TABLE 1.1
The Plan of This Book
5
4. Implementation. (A synonym is administration.) Here attention is on
what is done to carry into effect or apply adopted policies. Often further
development or elaboration of policies will occur in the course of their
administration. Who is involved? What, if anything, is done to enforce or
apply a policy? How does implementation help shape or determine the
content and impact of policy?
5. Evaluation. This entails activities intended to determine what a policy is
accomplishing, whether it is achieving its goals, and whether it has other
consequences. Who is involved? Who is advantaged and disadvantaged
by a policy? What are the consequences of policy evaluation? Are there
demands for changes in or repeal of the policy? Are new problems
identified? Is the policy process restarted because of evaluation?
Within this simplified framework, the formation and implementation of
policies are seen as political in that they involve conflict and struggle among
individuals and groups, officials and agencies, with conflicting ideas, interests,
values, and information on public-policy issues. Policymaking is “political”; it
involves “politics.” That is, its features include conflict, negotiation, the exercise of power, bargaining, and compromise—and sometimes such nefarious
practices as deception and bribery. There is no good reason to resist or disparage this conclusion, or to imitate those who derogate policies that they do not
like with such statements as “It’s nothing but politics.” Although it is sometimes implied or even asserted that if enough analysis were done, if enough
facts and data were gathered, all “right-thinking” people would agree on the
appropriate course of action to handle a problem, this is not the way the world
works. Quite reasonable people can disagree on policy issues because they
have differing interests, values, and affiliations. Politics is the way a democratic society resolves such differences.
The policy-process (sometimes it is called the policy cycle) approach to policy study has several advantages. First, and most important, the policy-process
approach centers attention on the officials and institutions who make policy
decisions and the factors that influence and condition their actions. We need
to be concerned about more than the complexity of public problems, the goals
of the polity, the general forms policy responses can take, and similar ­matters.
Knowledge of these is clearly of value, but we also want to know who makes
policy decisions and how they do it. Consequently, answers are needed for
such questions as: What is the legislature’s role in policymaking? How does
its structure affect decision-making? What sorts of factors or considerations
­influence the legislators’ decisions? The policy-process approach not only
helps us learn about policymaking and policy, it also causes us to take a more
holistic view of how government works.
Second, policymaking usually incorporates the stages or categories of activity that I have described. Its sequential nature thus helps one capture and
comprehend the flow of action in the actual policy process. However, in actuality the formulation and adoption stages may blend together, as when proposed
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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6
1
The Study of Public Policy
legislation on welfare reform is modified during consideration in committees
and on the House and Senate floors in order to win votes needed for its enactment. Administrative agencies issue rules elaborating policy, as in the case of
public-lands policy, while implementing it (see Chapter 6, “Policy Implementation”). The adoption of a policy, such as restrictions on abortion, solves a problem for some people while it creates a problem for others, who then restart the
policy process in an effort to modify or repeal the disliked policy. Even in such
instances, the policy-process approach can be used to analytically distinguish
the various activities involved.
Third, the policy-process approach is flexible and open to change and
­refinement.4 Additional stages can be introduced if experience indicates that
they would strengthen description and analysis. Perhaps budgeting should be
recognized as a separate stage of the process. Various forms of data collection
and analysis, whether quantitative (statistical), historical, legal, or normative
(value-oriented), are compatible with it. It can be used to study a single policy
(e.g., the Americans with Disabilities Act) or to compare the enactment and
implementation of several civil-rights laws. Group, institutional, and other
­approaches to policy study can be fitted into it. The group approach may help
explain policy adoption; institutionalism can cast light on its implementation.
Systems theory may help alert us to some of its societal consequences.
Fourth, the policy-process approach helps present a dynamic and developmental, rather than static and cross-sectional, view of the policy process. It is
concerned with the evolution of policy and requires that one think about what
moves action on policy from one stage of the process to another. Moreover, it
helps emphasize relationships, or interactions, among the participants in policymaking. Political parties, interest groups, legislative procedures, presidential
commitments, public opinion, and other matters can be tied together as they
drive and help explain the formation of a policy. Further, one can seek to discover how action at one stage of the process affects action at later stages. For
example, how does the design and content of legislation ease or complicate its
implementation? How does implementation affect its impact?
Fifth, the policy-process approach is not culture bound. It can readily be
used to examine policymaking in foreign political systems. It also lends itself
to manageable comparisons such as how problems reach governmental agendas, how policies are legitimated, or how policies are implemented in various
countries. Some comparisons of this sort are included in this book.5
We now turn to an explanation of public policy and of various ways of categorizing public policies.
What Is Public Policy?
In general usage, the term policy designates the behavior of some ­actor
or set of actors, such as an official, a governmental agency, or a legislature,
in an area of activity such as public transportation or consumer protection.
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What Is Public Policy?
7
Public policy also may be viewed as whatever governments choose to do or not
to do. Such definitions may be adequate for ordinary discourse, but because
we set out in this book to do a systematic analysis of public policy, a more precise definition or concept is needed to structure our thinking and to facilitate
effective communication with one another.
In this book, a policy is defined as a purposive course of action or inaction
followed by an actor or set of actors in dealing with a problem or matter of concern. This definition focuses on what is actually done instead of what is only
proposed or intended; differentiates a policy from a decision, which is essentially a specific choice among alternatives; and views policy as something that
unfolds over time.
Public policies are developed by governmental bodies and officials.
(­Nongovernmental actors and factors may of course influence public-policy
development.) The special characteristics of public policies stem from their
being formulated by what political scientist David Easton has called the
“­authorities” in a political system, namely, “elders, paramount chiefs, executives, legislators, judges, administrators, councilors, monarchs, and the like.”
These are, he says, the persons who “engage in the daily affairs of a political
system,” are “recognized by most members of the system as having responsibility for these matters,” and take actions that are “accepted as binding most of
the time by most of the members so long as they act within the limits of their
roles.”6 In short, public policies are those produced by government officials
and agencies. They also usually affect substantial numbers of people.
There are several implications of this concept of public policy as a relatively stable, purposive course of action followed by government in dealing
with some problem or matter of concern. First, the definition links policy to
purposive or goal-oriented action rather than to random behavior or chance
occurrences. Public policies in modern political systems do not, by and large,
just happen. They are instead designed to accomplish specified goals or produce definite results, although these are not always achieved. And, unintended
consequences may occur. Proposed policies may be usefully thought of as
­hypotheses suggesting that specific actions be taken to achieve particular goals.
Thus, to increase farm income, the national government has utilized income
subsidies and production controls. These programs have indeed ­enhanced the
incomes of many farmers, but by no means all.
The goals of a policy may be somewhat loosely stated and imprecise in
content, thus providing a general direction rather than precise targets for its
­implementation. Those who want action on a problem may differ both as to
what should be done and how it should be done. Ambiguity in language then can
become a means for reducing conflict, at least for the moment. Compromise to
secure agreement and build support may consequently yield general phrasing
and lack of clarity in the statement of policy goals.
Second, policies consist of courses or patterns of action followed over time
by governmental officials rather than their separate, discrete decisions. It is
difficult to think of such actions as a presidential decision to honor a movie
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8
1
The Study of Public Policy
actor or a Social Security Administration decision to award disability benefits
to John Doe as public policies. A policy includes not only the decision to adopt
a law or make a rule on some topic but also the subsequent decisions that are
intended to enforce or implement the law or rule. Industrial health and safety
policy, for example, is shaped not only by the Occupational Safety and Health
Act of 1970 but also by a stream of administrative rules and judicial decisions
interpreting, elaborating, and applying (or not applying) the act to particular
situations.
Third, public policies emerge in response to policy demands, or those claims
for action or inaction on some public issue made by other actors—private citizens, group representatives, or legislators and other public officials—upon
government officials and agencies. Such demands may range from general
­insistence that a municipal government “do something” about traffic congestion to a specific call for the national government to prohibit theft of pet dogs
and cats for sale to medical and scientific research organizations. In short,
some demands simply call for action; others also specify the action desired.
In response to policy demands, public officials make decisions that give
content and direction to public policy. They may enact statutes, issue executive
orders or edicts, promulgate administrative rules, or make judicial interpretations of laws. Thus, the decision by Congress to enact the Sherman Antitrust
Act in 1890 was a policy decision; another was the 1911 Supreme Court ruling that the act prohibited only unreasonable restraints of trade rather than
all restraints of trade. Each was of major importance in shaping that course
of action called antitrust policy. (The Sherman Act also prohibits monopolization and attempts to monopolize.) Such decisions may be contrasted with the
innumerable relatively routine decisions that officials make in the day-to-day
application of public policy. The Department of Veterans Affairs, for example,
makes hundreds of thousands of decisions every year on veterans’ benefits;
most, however, fall within the bounds of settled policy and can be categorized
as routine decisions.
Policy statements in turn usually are formal expressions or articulations
of public policy. Among these are legislative statutes, executive orders and
decrees, administrative rules and regulations, and court opinions, as well as
statements and speeches by public officials indicating the government’s intentions and goals and what will be done to realize them. Policy statements are
sometimes notably ambiguous. Witness the conflicts that arise over the meaning of statutory provisions or judicial holdings, or the time and effort expended
analyzing and trying to divine the meaning of policy statements by national
political leaders such as the president of the United States or the chair of the
Federal Reserve Board. Different levels, branches, or units of government may
also issue conflicting policy statements, as on such matters as environmental
pollution or liability for consumer products.
Fourth, policy involves what governments actually do, not merely what
they intend to do or what officials say they are going to do. If a legislature
enacts a law requiring employers to pay no less than a stated minimum wage,
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What Is Public Policy?
9
but nothing is done to enforce the law, and subsequently little change occurs in
economic behavior, it seems reasonable to contend that public policy actually
takes the form of nonregulation of wages.
Relevant here is the concept of policy outputs, or the actions actually taken
in pursuance of policy decisions and statements. This concept focuses our
­attention on such matters as amounts of taxes collected, miles of highway built,
welfare benefits paid, restraints of trade eliminated, traffic fines collected, and
foreign-aid projects undertaken. These can usually be enumerated with little
difficulty. Examining policy outputs, we may find that a policy differs somewhat or even greatly from what policy statements indicate it should be.
Policy outputs should be distinguished from policy outcomes, which focus
on a policy’s societal consequences. For example, do longer prison terms reduce crime rates? Do air pollution control programs improve public health?
Outputs can be counted; outcomes are often difficult or impossible to measure.
Fifth, a public policy may be either positive or negative. Some form of overt
governmental action may deal with a problem on which action is demanded
(positive), or governmental officials may decide to do nothing on some matter on which government involvement was sought (negative). In other words,
governments can follow a policy of laissez-faire, or hands off, either generally
or on some aspects of economic activity. Such inaction may have major consequences for a society or some groups, as in the late 1970s, when the national
government decided to cease regulating commercial airline rates and routes.
Inaction becomes a public policy when officials decline to act on a
­problem—that is, when they decide an issue negatively. This choice differs
from nonaction on a matter that has not become a public issue, has not been
brought to official attention, and has not been considered or debated. A slightly
ludicrous example is the lack of governmental action on the taking of earthworms—the activity has no seasons and no bag limits. Is this a public policy?
The answer is no because it is not an issue and no decisions have been made.
Finally, public policy, at least in its positive form, is based on law and is
authoritative. Members of a society usually accept as legitimate the facts that
taxes must be paid, import controls must be obeyed, and highway speed limits
must be complied with, unless one wants to run the risk of fines, jail sentences,
or other legally imposed sanctions or disabilities. Thus, public policy has an
authoritative, legally coercive quality that the policies of private organizations
do not have. Indeed, a major characteristic distinguishing government from
private organizations is its monopoly over the legitimate use of coercion. Governments can legally incarcerate people; private organizations cannot.
Some public policies may be widely violated even though they are authoritative, such as national prohibition in the 1920s and many highway speed limits. Moreover, enforcement may be limited, piecemeal, or sporadic. Are these
still public policies? The answer is yes because they were on the statute books
and enforcement was provided for. Whether such policies are effective or wise
is another matter. Authoritativeness is a necessary but not a sufficient condition for effective public policy.
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10
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The Study of Public Policy
Categories of Public Policies
Governments at all levels in the United States—national, state, and
l­ocal—have been increasingly active in producing public policies. Every year
a large volume of laws and ordinances flows from the nation’s national, state,
and local legislative bodies. That volume of laws in turn is greatly exceeded
by the quantity of rules and regulations produced by administrative agencies
acting on the basis of legislative authorizations. This proliferation of public
policies has occurred in such traditional areas of governmental action as foreign policy, transportation, education, welfare, law enforcement, economic
regulation, and international trade. Much activity has also come in areas that
received little attention until recent decades: economic stability, environmental protection, equality of opportunity, medical care, and consumer protection.
(Table 1.2 illustrates the variety of laws passed.)
During the 112th Congress (2011–2012), 238 public laws were enacted. A
great many involved naming public buildings and technical or limited changes
in existing laws. Despite substantial partisan conflict, Congress was able to
adopt several important statutes. Collectively, they dealt with a broad range of
topics. All of them incorporate biases or preferences that benefit some groups
and disadvantage or disappoint other groups. Only rarely does a public policy
make everyone better off.
Given the large number and complexity of public policies in the United
States, the task of trying to make sense of them is enormous. This section will
TABLE 1.2
Major Congressional Legislation, 2008
Economic Stimulus Act
Ensuring Continued Access to Student Loans Act
Extension of Higher Education Programs
Food, Conservation, and Energy Act (The Farm Bill)
Foreign Intelligence Surveillance Act Amendments
Consumer Product Safety Improvement Act
Americans with Disabilities Act Amendments
National Aeronautics and Space Administration Authorization Act
Emergency Economic Stabilization Act
Housing and Economic Recovery Act
Global AIDS Relief Reauthorization Act
Medicare Improvements for Patients and Providers Act
Rail Safety Improvement Act (included AMTRAK reauthorization)
Post-9/11 Veterans Educational Assistance Act
Energy Improvement and Extension Act
Mental Health Party and Addiction Equity Act
United States-India Nuclear Cooperation Act
Source: United States Statutes at Large 2008
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Categories of Public Policies
11
summarize a number of general typologies that political scientists and others
have developed for categorizing public policies. These typologies will prove
much more useful in distinguishing among and generalizing about policies
than some of the more traditional and widely used categorization schemes,
such as by issue area (labor, welfare, civil rights, and foreign affairs), institution (legislative policies, judicial policies, and departmental policies), and
time (New Deal era, post–World War II, and late nineteenth century). Although
these categories are convenient for designating various sets of policies and
­organizing discussions about them, they are not helpful in developing generalizations because they do not reflect the basic characteristics and content of
policies. The discussion of typologies will also provide the reader with a notion
of the scope, diversity, and different purposes of public policies.
his typology differentiates policies on the basis of their
T
­e ffects on society and the relationship among those
­involved in their formation.7 We begin with constituent policies. (Constituent is used here in the sense that it involves
the composition or makeup of government.) As Professor
Theodore Lowi states: “Constituent policies are policies formally and explicitly concerned with the establishment of
government structure, with the establishment of rules [or procedures] for the
conduct of government, of rules that distribute or divide power and jurisdictions within which present and future government policies might be made.” 8
This is sometimes referred to as “state-building.”
A structural example of constituent policy is the creation of the Department of Homeland Security. In June 2002, President George W. Bush, who had
argued that an executive department to manage counterterrorism programs
was unnecessary, reversed course (or “flip-flopped”) and called on Congress to
create a Department of Homeland Security. Members of Congress previously
had advocated setting up such a department, as had a presidential commission appointed by President Bill Clinton. Congress responded quickly to the
president’s recommendation, passing the Homeland Security Act in November
2002.
The new Department of Homeland Security pulled together functions from
twenty-two units in other executive departments. These included the Immigration and Naturalization Service (Justice), Customs Service (Treasury), Coast
Guard (Transportation), and Secret Service (Treasury), among others. No intelligence agencies (e.g., the Central Intelligence Agency and the National Security Agency) were included. By having these units lodged in the same vast and
sprawling department (170,000 employees), it was believed that they would
be able to act in a more unified and effective manner to protect the nation’s
internal security against terrorist attacks. Melding them into a coherent and
effective operating department proved to be a difficult task.
A procedural example of constituent policy is the federal Administrative
Procedure Act (APA) of 1946. This important statute, a response to the growth
Constituent,
Distributive,
Regulatory, SelfRegulatory, and
Redistributive
Policies
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12
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The Study of Public Policy
of administrative agency discretion in the early twentieth century, prescribes
procedures to be used by agencies in notice and comment or informal rulemaking. For example, APA requires notice of the proposed rule-making opportunity for interested persons to participate in the proceeding through oral or
written submissions, publication of a proposed rule at least thirty days ­before
it becomes effective, and opportunity for interested persons to petition for
­issuance, amendment, or repeal of a rule. The act’s requirements for adjudication are much more detailed, but in both instances it is intended to ensure
openness and fairness in agency decision-making.
Another example of a procedural policy is the requirement that an environmental impact statement (EIS) be prepared by federal agencies proposing
major actions affecting the environment by the National Environmental ­Policy
Act (NEPA). Its purpose is to cause agencies to give consideration to environmental effects before making their decisions. In itself NEPA adds nothing to
the substance of policy; it neither prohibits nor requires particular agency
­actions toward the environment. Rather, it specifies what agencies must do
when making a decision affecting the environment.
Constituent policies also include such matters as personnel practices and
budgetary actions. Because they are concerned with government organization,
procedures, and processes, constituent policies can have important substantive consequences. That is, how something is done or who has responsibility
for acting may help determine what is actually done. Governmental procedures can be used here briefly to indicate the importance of constituent policies in this respect.
Frequently, efforts are made to use procedural issues to delay or prevent
adoption of substantive decisions and policies. An agency’s action may be
challenged on the grounds that improper procedures were followed, as under
APA, when it is really the substance of the action that is being resisted. Some
Washington lawyers have become highly skilled in manipulating procedural
rules to delay or negate agency action. Thus, because of procedural delays and
complications (most of them produced by the maneuverings of the defendant
company), it took the Federal Trade Commission thirteen years to complete
a case compelling the manufacturer to remove the word liver from a product
named “Carter’s Little Liver Pills.” (The product has no effect on one’s liver.) If
an agency becomes entangled with procedural requirements, it may lose the
capacity for timely and effective action.
Distributive policies involve the allocation of benefits or services, at no
charge, to particular segments of the population—individuals, groups, companies, or communities. These include subsidies, grants, loans, technical
­assistance, information (as on the weather), contracts, and river and harbor
improvement actions. The federal departments of Agriculture, Commerce,
Energy, and Transportation administer a wide range of distributive ­policies.
Distributive policies may variously serve to enhance prices or incomes,
­reduce the cost or risk of actions, encourage research or economic development, stimulate economic activity, and provide recreational opportunities,
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Categories of Public Policies
13
tourism, and more. Perhaps needless to state, the expenditure of public funds
is usually involved, although not in the case of protective tariffs or import
limitations.
Typically, distributive policies do not impose costs upon any specific group.
Rather, the costs are paid by the public treasury, which means taxpayers generally. Thus distributive policies appear to create only winners and no specific
losers, although obviously someone does stand for their financial costs.
Although many distributive policies are of low political visibility, there are
exceptions. One example is the successful automobile industry bailout in 2009.
To help stave off their collapse and the loss of hundreds of thousands of jobs,
the government ultimately loaned General Motors and Chrysler (Ford was in
better shape), their finance companies, and many of their suppliers $82 ­billion.
Also, $3 billion was put into a Cash for Clunkers program for consumers to
­encourage them to swap gas guzzlers for newer models. Many ­Republicans and
Conservatives were opposed to these efforts. However, the companies ­survived.
The government made a billion dollars on its loan to Chrysler but is likely to
lose several billion dollars on the General Motors deal.9
Another example is Future Gen. In 2003, the government initiated a competitive program to construct a coal-fired electric power generating plant,
­using carbon capture and storage technology that would have no CO2 emissions. A consortium focused on Mattoon, Illinois, was the winner. Because
of its high cost, the Bush administration decided to cancel the project. The
Obama administration decided the project should go forward. It should be
completed by the time you read this.10
A discussion of distributive policies would not be complete without attention to pork barrel projects (“earmarks”). The Office of Management and Budget defines “pork” or an earmark as “funds provided by Congress for projects
or programs where congressional direction (in bill or report language) circumvents Executive Branch merit-based or competitive allocation processes,
or specifies the location or recipient, or otherwise curtails the ability of the
Executive Branch to manage critical aspects of the funds allocation process.”
So defined, OMB identified nearly 9,200 earmarks in 2010 appropriations
bills worth $11 billion.11 Most states and congressional districts shared in the
­bacon. Funds were directed to highway projects, research activities, public
buildings, tourist attractions, and more.
Scattered around the country, these projects have little connection with one
another, which supports Professor Theodore J. Lowi’s contention that distributive policies “are virtually not policies at all but are highly individualized decisions that only by accumulation can be called a policy.”12 Each locality and
its supporters usually seek designated money for their own project without
challenging the right of others to do the same. Most projects thus have some
friends and no enemies in Congress, and presidents usually choose to leave
them alone. Very recently, as earmarks came under sharp criticism as “wasteful spending,” their numbers greatly diminished. Even skilled congressional
“porkers” halted their efforts.
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14
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The Study of Public Policy
Regulatory policies impose restrictions or limitations on the behavior
of individuals and groups. That is, they reduce the freedom or discretion to
act of those regulated, whether bankers, utility companies, meat-packers, or
­saloonkeepers. In this sense they clearly differ from distributive policies, which
increase the freedom or discretion of the persons or groups affected.
When we think of regulatory policies, we usually focus on business regulatory policies, such as those pertaining to control of pollution or regulation of
transportation industries. Among others, these sorts of policies were the focus
of the movement for deregulation. The most extensive variety of regulatory
policies, however, is that which deals with criminal behavior against persons
and property. What are called social regulatory policies deal with such topics
as affirmative action, school prayer, gun control, pornography, and abortion,
and involve the regulation of personal behavior.13
The formation of regulatory policy usually features conflict between two
groups or coalitions of groups, with one side seeking to impose some sort of
control on the other side, which customarily resists, arguing either that control is unnecessary or that the wrong kind of control is being proposed. Amid
this opposition, regulatory decisions involve clear winners and losers, although
the winners usually get less than they initially sought. (When the winners are
public-interest groups, they may not gain direct material benefits from policies
that, like the Clean Air Act, provide broad social benefits.) It is often difficult,
however, to identify all the purposes and consequences of regulatory policies.
Regulatory policies take several forms.
Some regulatory policies set forth general rules of behavior, directing that
actions be taken or commanding that others not be taken. The Sherman Act
(which is a favorite of mine) in effect tells businesses, “Thou shalt not monop­
olize or attempt to monopolize or act to restrain trade.” These prohibitions
are enforced by actions brought in the federal courts against violators. In contrast, public-utility regulation by state governments involved detailed control
of entry into the business, standards of service, financial practices, and rates
charged by electric, telephone, and other utility companies. Comparatively,
­antitrust regulation entails much less restriction of business discretion than
does public-utility regulation.
Consumer-protection policies illustrate other variations in regulatory policies. Some statutes, such as the Pure Food and Drug Act of 1906 and the Drug
Amendments of 1962, set standards for quality that drug manufacturers must
comply with. Thus, before new drugs can be put on the market, they must be
shown to meet the standards for safety in use and efficacy for the purposes
intended. Other consumer legislation, such as the Consumer Credit Protection
Act, requires creditors to provide borrowers with accurate information on interest and other financing costs for credit purchases. The first sort of policy
is intended to prevent products that do not meet designated standards from
entering the marketplace; the second type is meant to provide consumers with
enough information to make informed decisions.
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Categories of Public Policies
15
Some regulatory policies, such as those that restrict entry into a business
such as television broadcasting or electric power distribution, are implemented
by decisions that confer benefits on some and deny them to others. Of the several applicants for a television broadcast license for a city that may be before
the Federal Communications Commission, only one can be propitiated. These
can be called competitive regulatory policies because they limit the number of
providers of specific goods and services. They also may regulate the quality of
services that can be provided to consumers.14
Self-regulatory policies are similar to competitive regulatory policies in
that they involve restricting or controlling some matter or group. Unlike competitive regulatory policies, however, self-regulatory policies are usually more
controlled by the regulated group as a means of protecting or promoting the
interests of its members. Several hundred professions and occupations, ranging from tree surgeons and auctioneers to lawyers and physicians, are licensed
in one or more states; about sixty are licensed in a majority of states. Commonly licensed health professionals include chiropractors, dentists, dental
hygienists, emergency medical technicians, optometrists, pharmacists, physicians, podiatrists, practical and registered nurses, psychologists, sanitarians,
and social workers.15
The usual policymaking pattern here is for a professional or occupational
group acting on its own to seek licensing legislation from the state legislature. Outside the ranks of the interested group, interest in the matter usually
is slight. The result is enactment of a licensing law, whose implementation is
delegated to a board dominated by members from the licensed group. In time,
­entry into the licensed occupation or profession may be restricted, and the
prices charged for its specialized services may increase. It is unclear to what
extent licensing improves the quality of services available to the public.16
Redistributive policies involve deliberate efforts by the government to shift
the allocation of wealth, income, property, or rights among broad classes or
groups of the population, such as haves and have-nots, proletariat and bourgeoisie. “The aim involved is not use of property but property itself, not equal
treatment but equal possession, not behavior but being.”17 In American society, redistributive policies ultimately involve disagreements between liberals
(pro) and conservatives (con) and tend to be highly productive of conflict.
The usual pattern in redistributive policy shifts resources from haves to
have-nots. It is possible, however, for the flow to reverse. Farm subsidy payments under the agricultural income-support programs go mostly to large
commercial farmers; small-scale farmers derive few benefits, yet everyone who
pays taxes contributes to financing of these programs. Typically, however, such
instances are not debated as redistributive,18 perhaps because of reluctance to
acknowledge that sometimes the haves benefit at the expense of the have-nots.
Redistributive policies are difficult to enact precisely because they ­involve
the reallocation of money, rights, or power. Those who possess money or power
rarely yield them willingly, regardless of how strenuously some may discourse
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16
1
The Study of Public Policy
upon the “burdens” and heavy responsibility attending their possession. Because money and power are good coinage in the political realm, those who
possess them have ample means to resist their diminution.
Policies that have (or have had) some redistributive influence include the
graduated income tax, Medicare and Medicaid, the War on Poverty, the Voting Rights Act, and legislative reapportionment. The Johnson administration’s
War on Poverty represented an effort to shift wealth and other resources to
blacks and poor people. Encountering much resistance from conservatives and
lacking strong presidential support, it was gradually dispersed and dismantled,
but not without effect. Although most of the individual antipoverty programs
(such as Head Start and the community action or service programs) still function, they have lost much of their redistributive quality. The Voting Rights Act,
which on the whole has been enforced with considerable strength by the Justice Department, has helped to produce a substantial increase in black voter
registration, voting, and state and local officeholding in the South.
The graduated income tax, which is based on the principle of ability to pay
(those who have more income can fairly be expected to pay at progressively
higher rates), has now lost some of its redistributive potential. The top marginal rate once was as high as 91 percent. In the early 1980s, the rates ranged
from 14 to 50 percent over a dozen income brackets, which still held out the
possibility of considerable redistribution. The Tax Reform Act of 1986, enacted
by Congress with strong support from President Reagan, who believed that
high marginal tax rates both infringed on individual liberty and discouraged
economic growth, provided for only two tax brackets at 15 and 28 percent. 19
Brackets of 31, 36, and 39.6 percent were added in the 1990s, however. These
marginal tax rates were reduced over the next several years by tax-reduction
legislation enacted in 2001 at the urging of the George W. Bush administration. In 2008, there were six rates: 10, 15, 25, 28, 33, and 35 percent. The top
rate was restored to 39.6 percent in 2012 for high-income people.
Redistributive policies are not only difficult to obtain, they are also hard
to retain, as the discussion of the income tax indicates. Equality of result
or condition (i.e., equality in income or standard of living) is not overly
­a ppealing to most Americans, whatever they think about equality of
opportunity.
ublic policies may also be described as either material or
P
symbolic, depending upon the kind of benefits they allocate.20 Material provide tangible resources or substantive
power to their beneficiaries, or impose real disadvantages on those who are
adversely affected. Legislation requiring employers to pay a prescribed minimum wage, appropriating money for a public-housing program, or providing
income-support payments to farmers is material in content and effect.
Symbolic policies, in contrast, have little real material impact on ­people.
They do not deliver what they appear to deliver; they allocate no tangible
­a dvantages and disadvantages. Rather, they appeal to people’s cherished
Material and
­Symbolic Policies
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Categories of Public Policies
17
values, such as peace, patriotism, and social justice. A historic example of a
symbolic policy is the Kellogg-Briand Pact of 1928, by which the United States
and fourteen other countries agreed to outlaw war. Comment on its impact
seems unnecessary.
Burning of the U.S. flag as a symbolic form of political protest has ­agitated
members of Congress for many years. In 1989, the Flag Protection Act­
provided criminal penalties for any person who “knowingly mutilates, defaces,
physically defiles, burns, maintains on the floor or ground, or tramples upon
any flag of the United States.” Quickly challenged, the act was declared unconstitutional by the U.S. Supreme Court as an infringement on the freedom of
expression protected by the First Amendment. The Court’s ruling touched off
a public and political furor. Beginning early in the 1990s, the House several
times has approved a constitutional amendment banning “physical desecration” of the flag.21 Each time, it has failed by a few votes to get the necessary
two-thirds approval of the Senate. This is an issue that has emotional appeal
for many Americans, especially conservatives.
Occasionally a policy that appears to be mostly symbolic may turn out to
have important consequences. The Endangered Species Act of 1973, which
is intended to help ensure the survival of rare animals and plants, initially
­appeared to be a statement of good intentions with few costs. Little opposition
attended its enactment. As implemented, however, the act has had important
effects, sometimes being used to block construction projects, timber cutting,
and other activities that would threaten or destroy the habitats of endangered
species, such as spotted owls, California gnatcatchers, and the red-cockaded
woodpecker.22
Most policies are neither entirely symbolic nor wholly material. The symbolic and material categories should instead be viewed as the poles of a continuum, with most policies being ranged along the continuum depending upon
how symbolic or material they are in practice. The Sherman Act, as an instrument for “trust busting,” for breaking up large monopolistic companies, has
long been symbolic. With the exception of AT&T, no trusts have been broken
up since the Progressive Era. On the other hand, beginning with the Carter
administration and continuing on into the Clinton administration and the
Obama administration, the Sherman Act has been applied with some vigor
against collusive behavior such as price fixing, bid rigging, and market allocation. Here it has had substantial material impact.
Policies that are ostensibly material as labeled by legislative language may
be rendered essentially symbolic by administrative action or by the legislature’s failure to provide adequate funds for their implementation. The goals
of the Housing Act of 1949 and later laws were made substantially symbolic
by the subsequent failure of Congress to provide the authorized level of funding for public-housing construction.23 On the other hand, policies may move
from the more symbolic to the more material category. Professor Bruce I.
Oppenheimer argues that policy for controlling oil pollution was largely symbolic during the years 1947 to 1966.24 Legislation was on the books, but little
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18
1
The Study of Public Policy
was done to enforce it. Since 1966, as the environmental movement gained
strength and public concern about pollution intensified, enforcement became
much stronger and additional legislation, such as the Oil Pollution Act, was
passed. Oil spills now draw strong responses. Witness what occurred following the massive April 2010 spill in the Gulf of Mexico at a BP drilling
operation.
The material–symbolic typology is especially useful to keep in mind when
analyzing effects of policy because it directs attention beyond formal policy statements. It also alerts us to the important role of symbols in political
behavior.
ublic policies may also involve the provision of either colP
lective (indivisible) goods or private (divisible) goods.25 The
nature of collective goods is such that if they are provided
for one person, they must be provided for all. Moreover,
one person’s consumption of a collective good does not deny it to others.
A standard example is national defense: There is no effective way to provide
it for some citizens and exclude others from its benefit, enjoyment, or other
consequences, nor to calculate that some citizens benefit more from it than
others. Thus, an economically rational person would never voluntarily pay
for national defense, clean air, or mosquito control, choosing rather to be a
free rider and let others stand the costs. Hence, defense must be provided, if
we want it, by government and financed by taxation. Other examples of collective goods are public safety, traffic control, and scenic beauties.
Private goods, in contrast, may be broken into units and purchased or
charged by the individual user or beneficiary, and are available in the marketplace. Others may be excluded from their use. Various social goods provided by
government (garbage collection, postal service, medical care, museums, public housing, and national parks) have some characteristics of private goods.
Charges and fees are sometimes, but not always, levied on users. Whether
such goods, which conceivably could be provided by the market economy, will
be provided by the government is a function of political decisions influenced
by tradition (parks), notions of the proper functions of government (the post
­office), the desire of users or beneficiaries to shift some of their costs to others
(federal crop insurance), and the like.
Some argue that only collective goods should be the subject of public
policy. The tendency, however, has been more and more to convert private
goods into social goods by government action. Many consider ill health, unemployment, environmental pollution, industrial accidents and disease, and
misrepresentation in the marketplace to be collective, rather than individual,
problems—­matters affecting the entire population, hence involving public
goods for which the entire society should pay. Generally, the more something
is thought to have the qualities of a public good, the more likely people are to
accept its provision by government. If it seems clear that some benefit more
­directly than others, there may also be a desire to levy charges, fees, or taxes
Policies Involving
Collective Goods
or Private Goods
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Approaches to Policy Study
19
on the direct beneficiaries to cover part of the cost. Thus, we encounter user
fees at national parks, tuition at public colleges, rent in public-housing projects, and tolls for some bridges and highways.
The privatization movement, encouraged in the 1980s by the Reagan
­administration, represented a counterforce to the long-run tendency to ­expand
the scope of social goods. Based on free-market economic theory, privatization supports transferring many government assets or programs to the ­private
sector and contracting with private companies to handle many public services, whether the collection of garbage or the operation of prisons. “The
private sector, it is argued, will perform these functions more efficiently and
economically than the public sector.”26 Sometimes it actually does.
The results of the privatization movement at the national level are mixed.
A successful example is the sale of Conrail, which operated several railroads in
the Northeast and Midwest, to a private corporation. Nothing, however, came
out of proposals by the Reagan administration and others to sell public lands
in the western states to private buyers.27 Even western ranchers and other supporters of the “sagebrush rebellion,” which promoted transferring ownership
of public lands to state and local governments, lost interest in privatization.
Their access to public grazing lands with low lease rates would have been jeopardized by privatization. Congress was also quite skeptical about the sale of
public lands.
Approaches to Policy Study
Political and social scientists have developed many models, theories,
approaches, concepts, and schemes for analyzing policymaking and its related
component, decision-making. Indeed, political scientists have often displayed
more facility and zeal for theorizing about public policymaking than for actually studying policy and the policymaking process. Nonetheless, theories and
concepts are needed to guide the study of public policy, to facilitate communication, and to suggest possible explanations for policy actions. Those who
aspire to systematically study the policymaking process need some guidelines
and criteria of relevance to focus their effort and to prevent aimless meandering through the fields of political data. What we find when we engage in research depends partly upon what we are looking for; policy concepts, models,
and theories give direction and structure to our inquiry.
This section will survey several theoretical approaches to the study of public policy. But first we must distinguish between policymaking and decisionmaking, a distinction that students of public policy do not always make with
clarity, if at all.
Decision-making, which will be treated in the chapter titled “Policy Adoption,” involves making a discrete choice from among two or more alternatives,
such as whether or not to read further in this book. Theories of decision-­
making deal with the criteria and processes used in making such choices.
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20
1
The Study of Public Policy
A policy, as defined earlier, is “a purposive course of action or inaction followed by an actor or set of actors in dealing with a problem or matter of concern.” Policymaking thus typically encompasses a flow and pattern of action
that extends over time and includes many decisions, some routine and some
not so routine. Rarely will a policy be synonymous with a single decision. Here
is a mundane illustration: It would not be accurate for a person to state that it
was his policy to take a bath on Saturday night if in fact he did so infrequently,
however, elegant and thoughtful the decision-making process that led to his
doing so on a rare Saturday. It is the course of action, the pattern or regularity, that defines policy, not an isolated event. In the example, the policy is best
thought of as going dirty.
The theoretical approaches discussed here include political systems
­theory, group theory, elite theory, institutionalism, and rational-choice theory.
­Although most of these approaches were not developed specifically for analyzing policy formation, they can readily be bent to that purpose. In addition, all
of them can be fitted into the policy-process framework. They are useful to the
extent that they direct our attention to important political phenomena, help
clarify and organize our thinking, and suggest explanations for political activity or, in our case, public policies. Limitations and criticisms are mentioned as
the discussion proceeds.
ublic policy may be viewed as a political system’s
P
­r esponse to demands arising from its environment.
The political system, as Easton defines it, comprises those
identifiable and interrelated institutions and activities (what we usually think
of as governmental institutions and political processes) in a society that make
authoritative allocations of values (decisions) that are binding on society. The
environment consists of all phenomena—the social system, the economic
system, and the biological setting—that are external to the boundaries of
the ­political system. Thus, at least analytically one can separate the political
­system from all the other components of a society.28
Inputs into the political system from the environment consist of demands
and supports. Demands are the claims for action that individuals and groups
make to satisfy their interests and values. Support is rendered when groups
and individuals abide by election results, pay taxes, obey laws, and otherwise accept the decisions and actions undertaken by the political system in
­response to demands. The amount of support for a political system indicates
the extent to which it is regarded as legitimate, or as authoritative and binding
on its citizens.
Outputs of the political system include laws, rules, judicial decisions, and
the like. Regarded as the authoritative allocations of values, they constitute
public policy. The concept of feedback indicates that public policies (or outputs) made at a given time may subsequently alter the environment and the
demands arising therefrom, as well as the character of the political system
­itself. Policy outputs may produce new demands, which lead to further outputs, and so on in a never-ending flow of public policy (see Figure 1.1).
Political Systems
Theory
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Approaches to Policy Study
21
Figure 1.1
A Model of the Political System
The Environment
Inputs
Support
Laws
Political
System
Decisions
Feedback
© Cengage learning
Demands
Outputs
The usefulness of systems theory in studying public policy is limited by its
highly general and abstract nature. It does not, moreover, say much about the
procedures and processes by which decisions are made and policy is developed within the “black box” called the political system. Indeed, systems theory
depicts government as simply responding to demands made upon it, and its
results are sometimes characterized as “input-output studies.” (For an illustration, see the discussion in Chapter 2 in the section headed Socioeconomic
Conditions.) Nonetheless, this approach can be helpful in organizing inquiry
into policy formation. It also alerts us to some important facets of the political
process, such as these: How do inputs from the environment affect the content of public policy and the operation of the political system? How in turn
does public policy affect the environment and subsequent demands for policy
action? How well is the political system able to convert demands into public
policy and preserve itself over time?
Group Theory
ccording to the group theory of politics, public policy is
A
the product of the group struggle. One writer states, “What
may be called public policy is the equilibrium reached in this [group] struggle
at any given moment, and it represents a balance which the contending factions
or groups constantly strive to weight in their favor.”29 Many public policies do
reflect the activities of groups. Examples include the AFL-CIO and minimumwage legislation, farm groups and agricultural subsidies, the ­National Rifle
Association and gun-control policies, and the National ­Education Association
and federal aid to public schools.
Group theory rests on the contention that interaction and struggle among
groups are the central facts of political life. A group is a collection of individuals that may, on the basis of shared attitudes or interests, make claims
upon other groups in society. It becomes a political interest group “when it
makes a claim through or upon any of the institutions of government.”30 And
many groups do just that. The individual is significant in politics only as a
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22
1
The Study of Public Policy
participant in or a representative of groups. It is through groups that individuals seek to secure their political preferences.
A central concept in group theory is that of access. To have influence and
to be able to help shape governmental decisions, a group must have access,
or the opportunity to contact and express its viewpoints to decision-makers. 31
­
Obviously,
if a group is unable to communicate with decision-makers, if no
one in government will listen, its chances of affecting policymaking are slim.
Access may result from the group’s being organized, from its having status,
good leadership, or resources such as money for campaign contributions.
­Social lobbying—the wining, dining, and entertaining of legislators and other
public officials—can be understood as an effort to create access by engendering a feeling of obligation to the groups involved. Then, when a group wishes
to discuss policy matters with an official, it will have an opportunity to present its case or have its telephone calls returned. Contributions to legislators by
­political action committees (PACs) are also often justified as a way of acquiring or maintaining access.
In the nature of things, some groups will have more access than others.
Public policy at any given time will reflect the interests of those who are dominant. As groups gain and lose power and influence, public policy will be ­altered
in favor of the interests of those gaining influence against the interests of those
losing it.
The role of government (“official groups”) in policy formation is described
by one proponent of group theory:
The legislature referees the group struggle, ratifies the victories of the successful coalitions, and records the terms of the surrenders, compromises,
and conquests in the form of statutes. Every statute tends to represent compromises because the process of accommodating conflicts of group interests
is one of deliberation and consent. The legislative vote on any issue tends to
represent the composition of strength, i.e., the balance of power, among the
contending groups at the moment of voting.... Administrative agencies of
the regulatory kind are established to carry out the terms of the treaties that
the legislators have negotiated and ratified. . . . The judiciary, like the civilian bureaucracy, is one of the instrumentalities for the administration of the
agreed rules.32
Group theory focuses on one of the major dynamic elements in policy
formation, especially in pluralist societies such as the United States, but it
seems both to overstate the importance and power of groups and to understate the independent and creative role that public officials can play in the
policy process. Indeed, many groups have been generated by public policies.
The American Farm Bureau Federation, which developed around the agricultural extension program, is a notable example, as is the National Head Start
Association. Public officials also may acquire a stake in particular programs
and act as an interest group supporting their continuance. In the United
States some welfare-agency employees, including social workers, prefer current programs, with their emphasis on supervision and services (as well as
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Approaches to Policy Study
23
benefits), to a guaranteed annual income, which would probably eliminate
some of their jobs.
Another shortcoming of group theory is that in actuality many people (e.g.,
the poor and disadvantaged) and interests (such diffuse interests as natural
beauty and social justice) are either not represented or only poorly represented
in the group struggle. As Professor E. E. Schattschneider remarks about the
underorganization of the poor, “The flaw in the pluralist heaven is that the
heavenly chorus sings with a strong upper-class accent.”33 Those who are not
represented will have little voice in policymaking and thus their interests are
likely to be slighted therein.
Finally, from a methodological perspective, it seems misleading and inefficient to try to explain politics and policymaking solely in terms of interests
and the group struggle. This bias leads to neglect of many other factors, such
as ideas and institutions, that abound and that independently affect the development of policy. The reductionism or unicausal explanation that results when
all political phenomena are crammed into the group concept should therefore
be avoided.34
pproached from the perspective of elite theory, public polA
icy can be regarded as reflecting the values and preferences
of a governing elite. The essential argument of elite theory is that public policy
is not determined by the demands and actions of the people or the “masses”
but rather by a ruling elite whose preferences are carried into effect by public
officials and agencies.
Professors Thomas Dye and Harmon Zeigler provide a summary of elite
theory:
Elite Theory
1. Society is divided into the few who have power and the many who do not.
[Only a small number of persons allocate values for society; the masses do
not decide public policy.]
2. The few who govern are not typical of the masses who are governed.
Elites are drawn disproportionately from the upper socioeconomic strata
of society.
3. The movement of non-elites to elite positions must be slow and
continuous to maintain stability and avoid revolution. Only non-elites
who have accepted the basic elite consensus can be admitted to governing
circles.
4. Elites share a consensus on the basic values of the social system and
the preservation of the system. [In the United States, the elite consensus
includes private enterprise, private property, limited government, and
individual liberty.]
5. Public policy does not reflect demands of the masses but rather the
prevailing values of the elite. Changes in public policy will be incremental
rather than revolutionary. [Incremental changes permit responses to
events that threaten a social system with a minimum of alteration or
dislocation of the system.]
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24
1
The Study of Public Policy
6. Elites may act out of narrow self-serving motives and risk undermining
mass support, or they may initiate reforms, curb abuse, and undertake
public-regarding programs to preserve the system and their place in it.
7. Active elites are subject to relatively little direct influence from apathetic
masses. Elites influence masses more than masses influence elites.35
So stated, elite theory is a challenging theory of policy formation. Policy is the
product of elites, reflecting their values and serving their ends, one of which
may be a desire to provide in some way for the welfare of the masses. Dye
­argues that development of civil-rights policies in the United States during the
1960s can be suitably explained by elite theory. These policies were “a ­response
of a national elite to conditions affecting a small minority of Americans rather
than a response of national leaders to majority sentiments.” Thus, for example, the “elimination of legal discrimination and the guarantee of equality of
­opportunity in the Civil Rights Act of 1964 was achieved largely through the dramatic appeals of middle-class black leaders to the conscience of white elites.”36
This interpretation presents a narrow perspective on both who is affected
by or interested in civil-rights policies and the explanation for adoption of the
Civil Rights Act of 1964. Certainly leadership in Congress and the executive
branch was very important, but so too were civil-rights protests and marches,
public opinion, and support from an array of nonblack organizations. The
civil-rights movement of the 1960s was far more than an effort by black leaders to appeal to the conscience of white elites.
Elite theory focuses our attention on the role of leadership in policy formation and on the reality that in any political system, a few govern the many.
Whether elites rule and determine policy, with little influence from the masses,
is a difficult proposition to handle. It cannot be proved merely by assertions
that the “establishment runs things,” which has been a familiar plaint in recent years. Political scientist Robert Dahl argues that to defend the proposition successfully, one must identify “a controlling group, less than a majority
in size, that is not a pure artifact of democratic rules . . . a minority of individuals whose preferences regularly prevail in cases of differences of preferences on key political issues.”37 It may be that elite theory has more utility for
analysis and explanation of policy formation in some political systems, such as
developing or Eastern European countries, than in others, such as the pluralist
democracies of the United States and Canada. Sociologist William ­Domhoff
has long argued, however, that there is an American upper class, based on
the ownership and control of large corporations, which is in fact a governing
class.38 There is a case to be made for his viewpoint. Since the early 1980s, the
income and wealth of the top 1 percent of taxpayers has soared. Billionaires
have become numerous; many choose to become politically active. On the
other hand, the income of most of the population has stagnated. Then in 2010,
the U.S. Supreme Court declared unconstitutional, as a violation of freedom
of speech, legislation restricting campaign spending by corporations and
­o thers. 39 In 2012, some persons and corporations spent tens of millions
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Approaches to Policy Study
25
of dollars on political campaigns, mostly to defeat the reelection of Barack
Obama or Democratic candidates.
he study of government institutions (or organizations)
T
is one of the oldest concerns of political science. This is not
surprising since political life generally revolves around governmental
­institutions such as legislatures, executives, courts, and political parties; public policy, moreover, is authoritatively determined and implemented by these
institutions.
Traditionally, the institutional approach concentrated on describing the
more formal and legal aspects of governmental institutions: their formal
structure, legal powers, procedural rules, and official functions or activities.
­Formal relationships with other institutions might also be considered, such as
­legislative–executive relations. Usually little was done to explain how institutions actually operated as opposed to how they were supposed to operate, to
analyze public policies produced by the institutions, or to discover the relationships between institutional structure and public policies.
Subsequently, political scientists turned their attention in teaching and research to the political processes within governmental or political institutions,
concentrating on the behavior of participants in the process and on political
realities rather than formalism. In the study of the legislatures, interest shifted
from simply describing the legislature as an institution to analyzing and explaining its operation over time, from its static to its dynamic aspects. In the
academic curriculum, the course on the legislature often came to be about the
legislative process.
Institutionalism, with its emphasis on the formal or structural aspects of
institutions, can nonetheless be usefully employed in policy analysis. An institution is, in part, a set of regularized patterns of human behavior that persist
over time and perform some significant social function or activity. To describe
institutions as “rules,” as some do, is to oversimplify. It is their differing patterns of behavior that really distinguish courts from legislatures, from administrative agencies, and so on. These regularized patterns of behavior, which we
often call rules or structures, can affect decision-making and the content of
public policy. Rules, structural arrangements, and other institutional features
are usually not neutral in their effects; rather, they tend to favor some interests
in society over others and some policy results over others.
It is contended that some of the Senate rules (and traditions, which often
have the effect of rules), such as those relating to unlimited debate and action
by unanimous consent, favor the interests of legislative minorities over majorities. Many actions in the Senate, such as bringing bills up for consideration
and closing off debate on them, are done by unanimous consent. Thus, one
senator, so inclined, can block action by the Senate.
In the American federal system, which allocates governmental power
among the national and state governments, several arenas of action are
Institutionalism
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26
1
The Study of Public Policy
created. Some groups may have more influence if policy is made at the ­national
level, whereas others may benefit more from state policymaking. Civil-rights
groups, for example, have received a better response in Washington, DC, than
in the capitals of the southern states. Groups advocating adoption of English
as the nation’s official language, however, have fared better at the state level.
Since 1983 some twenty states adopted such laws, but Congress has been
­unsympathetic. Indeed, the Voting Rights Act provides that in some states
­ballots must be printed in foreign languages as well as in English.
In summary, institutional structures, arrangements, and procedures often
have important consequences for the adoption and content of public policies.
They provide part of the context for policymaking, which must be considered
along with the more dynamic aspects of politics, such as political parties,
groups, and public opinion, in policy study. By itself, however, institutional
theory can provide only partial explanations of policy. It has little to say about
what drives the policy process, the dynamic forces of politics.
he rational-choice theory, which is sometimes called
T
­social-choice, public-choice, or formal theory, originated
with economists and involves applying the principles of micro
economic theory to the analysis and explanation of political behavior (or nonmarket decision-making). It has now gained many adherents among political
scientists.
One of the earliest uses of rational-choice theory to study the political process is Anthony Downs’s Economic Theory of Democracy.40 In this influential
book, Downs assumes that voters and political parties act as rational decisionmakers who seek to maximize attainment of their preferences. Parties formulated whatever policies would win them most votes, and voters sought to
maximize the portion of their preferences that could be realized through government action. In attempting to win elections, political parties moved toward
the center of the ideological spectrum to appeal to the greatest number of
voters and maximize their voting support. Thus, rather than providing voters
with “meaningful alternatives,” parties will become as much alike as possible,
thereby providing an “echo rather than a choice.”
Let us now look more closely at the major components of rational-choice
theory. One of its basic axioms is that political actors, like economic actors,
act rationally in pursuing their own self-interest. Thus, economist James
­Buchanan, a leading proponent of rational-choice theory, contends that politicians are guided by their self-interest rather than by an altruistic commitment
to such goals as statesmanship or the national interest. “This should be no
surprise,” says Buchanan, “because governments are made up of individuals,
and individuals operate from self-interest when they are engaged in a system
of exchange, whether this is in the market economy or in politics.”41
Individuals who are engaged in decision-making exchanges or transactions,
such as voting, also have preferences that vary from person to person. Being
rational, it is argued, individuals can comprehend and rank their preferences
Rational-Choice
Theory
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Approaches to Policy Study
27
from most to least desired. In making decisions (whether economic or political), they are guided by these preferences and will seek to maximize the benefits they gain. In short, people are self-interested utility maximizers, not the
uninformed, confused, or irrational choice-makers often depicted in analyses
of political behavior.
A second basic axiom of rational-choice theory involves methodological
­individualism. The individual decision-maker is the primary unit of analysis
and theory. The individual’s preferences or values are assumed to be more
important than other values—collective, organizational, or social. Conversely,
rational-choice theorists argue that the actions of organizations and groups can
be satisfactorily explained in terms of the behavior of a model individual. Nothing substantial will be lost by so doing in explaining the behavior of all persons.
For example, a rational-choice explanation of why Congress delegates
discretionary power to administrative agencies begins with the assumption
that the preference of members of Congress is to get reelected.42 To this end,
­legislators delegate power to agencies, knowing that in exercising that power
the agencies will create problems for their constituents. Legislators will then
be called on by their constituents to assist them with their bureaucratic problems, and in return for assistance, the grateful constituents will vote to reelect
the legislators. The pursuit of self-interest by the members of Congress thus
­explains the delegation of power and the growth of bureaucracy.
Some rational-choice theorists have explored the effects of incomplete or
imperfect information and uncertainty on policymaking.43 Political decisionmakers are said to be possessed of differing amounts of information (a condition called information asymmetry) and are uncertain about the outcomes or
consequences of laws and policies when they are implemented. In Congress,
legislative committee members, as policy specialists and the basic developers
of legislation, are best informed about the relationship between a proposed
policy and its likely consequences. In comparison, the rank-and-file members
of Congress, who make the final decisions on the enactment of legislation,
have only limited knowledge of the policy–consequences relationships. Conceivably, this information asymmetry would permit committee members to act
strategically and secure the enactment of policies of benefit primarily to themselves (and their constituents).
Various rules and practices in Congress, however, help ensure that legislators will have incentives both to specialize in analyzing public problems and
crafting policies and to make information generally available to the members
of Congress. The problem is to identify the institutional arrangements that
help reduce uncertainty. This “information-theories” variant of rational choice
continues to assume that legislators are utility maximizers with differing interests. Their utility, however, is determined by policy outcomes rather than by
policies per se. About outcomes, as we have seen, there is uncertainty.
Rational-choice studies of political behavior are often characterized by
rigid and narrow assumptions, mathematical equations, abstractions, and
remoteness from reality. Even William C. Mitchell, an early enlistee in the
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28
1
The Study of Public Policy
rational-choice movement, remarks that as it appears in textbooks, rationalchoice theory “hardly involves government, politicians, bureaucrats, and interest groups. Little of the exposition . . . has anything to do with the fiscal
or regulatory lives of the community or state.”44 A more positive view holds
that “in its pure form it is one, but only one, useful, partial explanation of
politics.”45
Rational-choice theory both alerts us to the importance of self-interest as
a motivating force in politics and policymaking and provides a better understanding of decision-making processes. Many contend, however, that politics
is not nearly as devoid of altruism and concern for the public interest as the
rational-choice theorists assume. The adoption of “good public policy,” for
example, is frequently a goal of members of Congress. 46 And public-interest
groups, such as the National Wildlife Federation, are motivated by more than
immediate self-interest.47
ecause individual political scientists often manifest strong
B
preference for one or another of these theoretical approaches
(or others, such as incrementalism, which is presented as a decision-making
theory in the chapter titled “Policy Adoption”), there is no consensus on which
is the “best” or the most satisfactory. Each approach focuses attention on different aspects of policymaking and politics, and thus seems more useful for
understanding some situations or events than others.
Group theory and elite theory are mutually exclusive explanations of how
the policy process operates and, most important, of who controls or dominates
and benefits from it. Or, succinctly: Who rules? Sharp intellectual catfights
have been waged between group (or pluralist) theorists and elite theorists
about who controls decision-making on public policy in American communities. Much heat, if not light, was generated by this controversy, which has quieted down without the issue having been fully resolved.48
Systems theory and institutionalism both focus on the process of policymaking, albeit in different ways, and are not incompatible. Institutionalism
can be used to help explain what goes on within the “black box” (the political
system), which is neglected by systems theory. Because neither theory directly
confronts the question of who rules, either group or elite theory could be combined with them to some degree.
Rational-choice theory, because of its narrow focus, must stand pretty
much by itself. Institutions appear as the individual writ large; little attention
is given to the policy environment, how issues are brought to the attention of
government, or how policy preferences are developed. Like institutionalism,
however, rational-choice theory does show much interest in how rules and
structures help determine the outcomes of decision-making. Rational-choice
scholars often occupy themselves with demonstrating how the manipulation
of rules could produce preferred decisions.
On the question of who rules, rational-choice theory asserts that democratically elected officials will promote their own interest rather than the people’s.
Commentary
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Approaches to Policy Study
29
This conviction frequently leads to the normative (and conservative) conclusion that less government is better government. Group theorists feel that the
interests of dominant groups (however determined) prevail, and for elite theorists, the few (a ruling class) govern in their own interest, perhaps with some
concern for the condition of the masses.
The various theories thus raise some controversial questions about politics
and the policymaking process. They also tend to skew research findings. Not
surprisingly, pluralists find groups in control, elite theorists detect dominance
by an elite, and rational-choice theorists find that self-interest dominates.
These theories are therefore not merely neutral alternatives for guiding analysis. What one finds in policy research depends in important part on what one
is looking for, just as those who go about town “looking for trouble” are more
apt to find it than are more peaceful citizens.
The differing concerns of these theoretical approaches can be further clarified by briefly observing how their proponents might look at the recent struggle
to adopt financial regulatory legislation. Bands and other financial institutions
were firmly regulated from the Great Depression until the 1970s. Then, as freemarket ideology and the economic deregulation movement gained traction,
regulation was weakened or eliminated. Also, a “shadow” financial system not
subject to regulation evolved. This inadequately restrained financial system led
eventually to the near collapse of the financial system and the Great Recession.
Strong pressure developed for regulatory legislation to prevent future financial
crises.
In 2010, after months of partisan conflict, Congress enacted the DoddFrank Wall Street Reform and Consumer Protection Act by votes of 237–192
in the House and 60–39 in the Senate. Only three Republicans in each house
voted for the complex, 2,300-page Act. It prohibited future bailouts of financial institutions, regulated over-the-counter sale of derivatives, restricted proprietary trading by banks, abolished the Office of Thrift Supervision, created
a Consumer Financial Protection Bureau, and much more. In all, it greatly
increased national financial regulation.49
A group theorist would view this titanic struggle to adopt financial regulation as a contest for advantage among various financial interests, regulatory
advocates, and consumer groups, as well as the political parties and the Obama
administration. Lobbying and other group tactics would be scrutinized. An
­institutionalist, in comparison, would focus on the problems presented by congressional structure and procedure in securing the enactment of legislation.
These could include getting the bill to the House floor for debate, overcoming
filibusters in the Senate, resolving differences in House and Senate versions
of the bill, and avoiding a presidential veto. Much attention would be given to
how a bill becomes law.
A rational-choice proponent would see members of Congress calculating
how the content of reform legislation would affect the ability to raise campaign money and to get reelected. Another of his or her concerns would be
strategic behavior, as when opponents propose amendments that, if adopted,
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30
1
The Study of Public Policy
would make the bill unacceptable to some of its supporters (a “poison pill”),
or when reformers craft amendments to help gain or retain supporters. Selfinterest would be seen as informing legislative behavior.
An elite theorist would see the legislative struggle here as one of interest
primarily to top-level legislative and political leaders. Both proponents and
­opponents of reform would contend that what they were trying to do was best
for the public. The elitist would hold that the mass public was neither interested nor informed, especially on the details of legislation.
Finally, a systems theorist would likely rivet on how government action was
influenced by inputs (demands, pressures, and information) from its political,
social, and economic environment. Limited attention at best would be devoted
to the details of how a bill becomes law. In time the systems theorist would be
attentive to how the government’s decisions on campaign-finance reform affected its operation and future demands on it.
To conclude, the lesson here is that it is advisable to avoid becoming too
dogmatically or rigidly attached to a particular model or theory. As a rule, eclecticism and flexibility should be preferred in selecting theories and concepts for
explanatory use. The policy analysts’ goal should be the objective explanation
of the political behavior under scrutiny, rather than the validation of a favored
model or theoretical approach. Each of the theories here discussed can, if used
skillfully and fairly, contribute to a fuller comprehension of policymaking.
Methodological Difficulties
in Studying ­Public Policy
Methodological problems afflict all research, although social scientists appear
both more self-conscious about their methodology and more intellectually inclined to batter themselves for methodological infirmities than do natural and
physical scientists. Policy research, especially given the complexity of its subject matter, has its full share of methodological problems. Such problems may
impede or limit policy research, and may make it more than a little frustrating
at times, but they neither prevent it nor negate the need for it. An awareness
of some of these problems, however, may help prevent wasted efforts, needless
errors, unsound conclusions, and insomnia.
Solid, conclusive evidence, facts, or data, as one prefers, on the motives,
values, and behavior of policy-makers, the nature and scope of public problems, the impact of policies, and other facets of the policy process are often
difficult to acquire or simply not available. The urge to convert assumptions or
speculations about what happened into facts is something to be resisted, along
with the uncritical acceptance of the often self-serving statements or incomplete explanations emanating from public officials and other participants in
the policy process.
Sometimes numerical measures of political phenomena such as policy
impacts are used without sufficient care in determining their validity. Is the
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Methodological Difficulties in Studying ­Public Policy 31
number of infant deaths (in their first year) per 1,000 live births a good
­indicator of the general level of health care in a society that has much income
inequality? Do salary levels and similar data really measure the professionalism of civil servants? The acquisition of hard facts about who did what, why,
and with what effect should be the goal of research. We need to be able to say
with some certainty why members of Congress respond to constituency interests on some issues and not others, or what role the media play in setting
agendas.
In explaining behavior in the policy process, one needs empirical data
that will permit the demonstration or sound inference of cause-and-effect
­relationships. Once a person gets involved in quantitative data–based analysis,
it is important to resist the notion that collecting empirical data is of prime
­importance and that the more data one has, the more one can explain. One
can drown in a sea of data as well as thirst for lack thereof. To account for or
explain behavior, theory is needed that will guide analysis in potentially fruitful directions, as well as good judgment in the selection of policy measures. As
much as possible, hypotheses about cause-and-effect relationships need to be
developed and tested on the basis of the best available evidence.
The notion that policy analysis is worthwhile only when it involves the
analysis of quantitative data with statistical techniques—the higher powered
the better—should also be resisted. There is no reason to assume that if something cannot be counted, it does not count. Some policy areas and problems
have not been very amenable to rigorous quantitative measurement and analysis, although this may not always continue to be the case. Many aspects of
social welfare and economic regulatory policies currently fit into this category.
How does one measure the comparative influence of pressure groups, agency
values, and economic analysis on rule-making by the EPA or OSHA? The
prosecution of insider traders by the Securities and Exchange Commission?
The total benefits of a public-housing program? And how does one appraise
the power of ideas, as distinct from interests, in developing programs for the
handicapped? Such questions present real puzzles.
Yet it should be stressed that explicit theory, quantitative data, and careful, rigorous analysis have not been as frequently utilized in studying policy as
would be possible or desirable. Thus, political scientist Marver H. Bernstein’s
hoary contention that regulatory agencies pass through a four-stage life cycle
(gestation and birth, youth, maturity, and old age), frequently culminating in
their “capture” (which is not well-specified) by the regulated groups, is often
cited as though it were a clearly supported phenomenon.50 Bernstein provides
impressionistic support but by no means strong proof for his life-cycle theory.
(He does not follow a single commission through all of the stages of the cycle.)
It still lacks systematic empirical support. Conventional wisdom of this sort
frequently rests on a rather frail intellectual foundation. Another example, also
in the regulatory area, is economist George Stigler’s theory of economic regulation. It holds that, as a rule, regulation is sought by the affected industry
and operated for its benefit.51 This theory will not do much to explain a raft
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32
1
The Study of Public Policy
of consumer protection, industrial health and safety, and environmental programs, or the deregulation legislation of the late 1970s and early 1980s.
Many perceptive and informative studies of policy formation employ little
or no statistical analysis. Examples are Barbara J. Nelson’s Making an Issue
of Child Abuse, I. M. Destler’s American Trade Politics, Adam Sheingate’s The
Rise of the Agricultural Welfare State, and Paul Milazzo’s Unlikely Environmentalists.52 The quality of intellectual analysis and careful use of sound data (or
information) are more important than whether and to what extent quantitative
analysis is employed when it comes to determining the worth of a study.
To be rigorous, analysis does not have to be quantitative, and not all quantitative analysis is rigorous. Those who use quantitative techniques have been
known to quarrel with enthusiasm and even some rancor over the reliability or
appropriateness of their techniques, the quality of their data, and the validity
of their findings. (In the chapter titled “The Policy-Makers and Their Environment,” there is a discussion on whether socioeconomic or political variables
better explain policy.) Also, to be fair-minded, one should avoid developing a
phobia for quantitative or statistical analysis, as some did in reaction to the
behavioral movement in political science. Much can be learned through quantitative analysis.
Data gained by interviews and questionnaires administered to public officials and other players in the policy process are often invaluable and may not
otherwise be available to researchers. Care is required, however, in using both
such techniques and the data acquired. Questions must be properly framed to
elicit the needed information. Questions that are “loaded” and therefore bias
responses, or that are so general as to create strong doubt about their intent,
need to be avoided. Officials and others may not always respond fully or candidly to questions, their memories may be hazy, and they may overstate their
own role in events. Data gained from these sources obviously should not be
viewed as gospel. Rather, they should be checked against other sources, used
with care, and regarded as representing particular viewpoints on some event.
Good judgment is called for.
Many studies of policymaking take the form of case studies; that is, they
focus on particular programs, statutes, or areas of public policy. Case studies
have been the butt of much criticism because, being narrowly based, they do
not permit sound generalization. “What is a case study a case of?” is a common
gibe. Preferred studies are those dealing with all the cases in a universe, such
as all regulatory commissions or sunset laws, or a meaningful sample thereof,
such as Supreme Court decisions on the rights of the accused or the benefit
decisions made by a welfare agency. These afford a better basis for generalizations. Case studies, however, do have a variety of uses.53 They can be used to
test theories; to develop new theories; to provide detailed, contextual analysis
of events; to analyze deviant cases that contradict our generalizations; and to
help provide an “intuitive feel” for the subtleties and nuances of the policy
process and the practice of politics. There is plenty of room in the study of
policy for both case studies and more general and comparative studies. And, as
­someone once remarked, the plural of anecdote is data.
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Suggested Readings
33
For Further
Exploration
❚ www.care2.com/causes/politics/
The Policy Action Network site provides numerous links to liberal think
tanks and foundations devoted to a variety of public-policy issues such
as economic, health, education, and media policies.
❚ http://www.jointcenter.org
This site for the Joint Center for Political and Economic Studies provides a wide range of information on policy issues and other matters
relating to racial and ethnic groups.
❚ http://www.ncpa.org
Although it is conservative in nature, the homepage of the National
­Center for Policy Analysis (NCPA) provides a wealth of descriptive
­material on specific domestic- and foreign-policy issues.
❚ http://www.pbs.org/newshour/
The Online NewsHour provides a site titled “Forum,” where several current policy issues are debated each month. This site also contains transcripts of the various policy discussions and roundtable issues that were
broadcast on The NewsHour with Jim Lehrer.
Test Your
Knowledge
Log on to the student companion website at
login.cengage.com
to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary
flashcards that review chapter concepts and terminology.
Suggested
Readings
Carl E. Van Horn, Donald C. Baumer, and William T. Gormley Jr., ­Politics
and Public Policy, 3rd ed. (Washington, DC: CQ Press, 2001). Six policy
­domains—boardroom, bureaucratic, cloakroom, chief executive,
­courtroom, and living room politics—are utilized in a wide-ranging
­examination of the policy process.
Frank R. Baumgartner and Beth L. Leech, Basic Interests: The Importance of
Groups in Politics and Political Science (Princeton, NJ: Princeton University Press, 1998). No one interested in groups and politics should ignore
this outstanding analysis of group theory and the literature on groups.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
remove additional content at any time if subsequent rights restrictions require it.
34
1
The Study of Public Policy
Kevin B. Smith and Christopher W. Larimer, The Public Policy Theory Primer,
2nd ed. (Boulder CO: Westview Press, 2013). This is a weighty, up-to-date
exposition of public-policy theories and the study of public policy.
Michael E. Kraft and Scott R. Furlong, Public Policy: Politics, Analysis, and
Alternatives (3rd ed. Washington, DC: CQ Press, 2010). This readable book
combines an examination of the policy process with a discussion of several areas of domestic policy.
Paul A. Sabatier, ed., Theories of the Policy Process, 2nd ed. (Boulder, CO:
Westview Press, 2007). The challenging essays in this anthology present a
variety of theoretical lenses for studying the policy process.
Theodore J. Lowi, Arenas of Power (Boulder, CO: Paradigm Publishers, 2009).
This long-awaited study by the leading public policy guru draws on history, analysis, and case studies to provide deep understanding of the
policy process.
Thomas R. Dye, Top Down Policymaking (New York: Chatham House, 2001).
This controversial examination of the policymaking process in the United
States argues that it is dominated by a national elite.
Notes
1. On policy analysis, see Robert D. Behn, “Policy Analysis and Politics,” Policy Analysis, Vol. VII (Spring 1981), pp. 199–226; Peter J. May, “Politics and Policy Analysis,”
Political Science Quarterly, Vol. 101 (Spring 1986), pp. 109–125; and Michael C.
Munger, Analyzing Policy (New York: Norton, 2000).
2. Thomas R. Dye, Understanding Public Policy, 7th ed. (Englewood Cliffs, NJ:
­Prentice-Hall, 1992), p. 7.
3. See David Easton, The Political System (New York: Knopf, 1953), Chap. 2.
4. See, generally, Richard Rose, “Concepts for Comparison,” Policy Studies Journal,
Vol. I (Spring 1973), pp. 122–127.
5. For criticisms of the sequential-process approach, see Charles E. Lindblom and
Edward J. Woodhouse, The Policy Making Process, 3rd ed. (Englewood Cliffs, NJ:
Prentice-Hall, 1993), pp. 10–12; and Paul A. Sabatier and Hank Jenkins-Smith,
eds., Policy Change and Learning: An Advocacy Coalition Approach, (Boulder, CO:
Westview, 1993), Chap. 1.
6. David Easton, A Systems Analysis of Political Life (New York: Wiley, 1965), p. 212.
7. The basic typology is from Theodore J. Lowi, “American Business, Public Policy
Case Studies, and Political Theory,” World Politics, Vol. XVI (July 1964),
pp. 677–715. The self-regulatory category is from Robert Salisbury, “The Analysis
of Public Policy,” in Austin Ranney ed., Political Science and Public Policy (­Chicago:
Markham, 1968), pp. 151–175.
8. Theodore J. Lowi, Arenas of Power (Boulder CO: Paradigm Publishers, 2009),
p. 15.
9. Mark Zandi, Paying the Price (Upper Saddle River, NJ: FT Press, 2013), Chap. 4.
10. Michael J. Graetz, The End of Energy (Cambridge, MA: MIT Press, 2011),
pp. 193–194.
11. http://earmarks.omb.gov/public/2010-appropriations-by-spendcom/summary.html
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Notes
35
12. Lowi, American Business, op. cit. p. 690
13. Raymond Tatalovich and Byron W. Daynes, eds., Moral Controversies in American
Politics: Cases in Social Regulatory Politics (Armonk, NY: M. E. Sharpe, 1998).
14. Randall B. Ripley and Grace A. Franklin, Congress, the Bureaucracy, and Public
Policy (Pacific Grove, CA: Brooks/Cole, 1991), pp. 20–21.
15. Kenneth J. Meier and E. Thomas Garman, Regulation and Consumer Protection,
3rd ed. (Houston: Dome Publications, 1998), pp. 41–42.
16. For a discussion of licensing, see ibid., Chap. 3.
17. Lowi, op.cit., p. 691. On redistributive policies, see Ripley and Franklin, op. cit.,
Chap. 6.
18. Randall B. Ripley, Policy Analysis in Political Science (Chicago: Nelson Hall, 1985),
pp. 68–69.
19. Paul E. Peterson and Mark Rom, “Lower Taxes, More Spending, and Budget
Deficits,” in Charles O. Jones, ed., The Reagan Legacy: Promise and Performance
(­Chatham, NJ: Chatham House, 1988), pp. 218–221.
20. On the symbolic aspects of policies, see Murray Edelmann, The Symbolic Uses of
Politics (Urbana: University of Illinois Press, 1964), Chap. 2; and Charles D. Elder
and Roger W. Cobb, The Political Uses of Symbols (New York: Longman, 1983).
21. Congressional Quarterly Weekly Report, Vol. 53 (July 1, 1995), p. 1933.
22. Brian Czech and Paul R. Krausman, The Endangered Species Act (Baltimore: Johns
Hopkins University Press, 2001).
23. Richard O. Davis, Housing Reform During the Truman Administration (Columbia:
University of Missouri Press, 1966), Chap. 10.
24. Bruce I. Oppenheimer, Oil and the Congressional Process (Lexington, MA: Heath,
1974), pp. 130–145.
25. Cf. L. L. Wade and R. L. Curry Jr., A Logic of Public Policy (Belmont, CA:
­Wadsworth, 1970), Chap. 5; and Charles L. Cochran and Eloise F Malone, Public
Policy (New York: McGraw-Hill, 1995), pp. 17–19.
26. Ronald C. Moe, “Exploring the Limits of Privatization,” Public Administration Review, Vol. XLVII (November–December 1987), p. 453.
27. R. McGregor Cawley, Federal Land, Western Anger (Lawrence: University Press of
Kansas, 1993).
28. David Easton, “An Approach to the Analysis of Political Systems,” World Politics,
Vol. IX (April 1957), pp. 383–400; and Easton, op. cit.
29. Earl Latham, The Group Basis of Politics (New York: Octagon Books, 1965), p. 36.
30. David Truman, The Governmental Process (New York: Knopf, 1951), p. 37.
31. Alan C. Isaak, Scope and Methods of Political Science (Chicago: Dorsey Press,
1988), pp. 269–270.
32. Latham, op. cit., pp. 35–36, 38–39.
33. E. E. Schattschneider, The Semisovereign People (New York: Holt, Rinehart and
Winston, 1960), p. 35.
34. See, generally, Frank R. Baumgartner and Beth L. Leech, Basic Interest: The
­Importance of Groups in Politics and Political Science (Princeton, NJ: Princeton
University Press, 1998).
35. Thomas R. Dye and L. Harmon Zeigler, The Irony of Democracy, 10th ed.
(­Belmont, CA: Wadsworth, 1996), pp. 4–5. See also Thomas R. Dye, Top Down
­Policymaking (New York: Chatham House, 2001).
36. Dye, op. cit., pp. 59–63.
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36
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The Study of Public Policy
37. Robert A. Dahl, “A Critique of the Ruling Elite Model,” American Political Science
Review, Vol. LII (June 1958), p. 464.
38. G. William Domhoff, Who Rules America? (Englewood Cliffs, NJ: Prentice-Hall,
1967); G. William Domhoff, The Power Elite and the State: How Policy Is Made in
America (New York: Walter deGruyter, 1990).
39. Citizens United v. Federal Election Commission, 558 U.S. (2010). See also Jeffrey
Toobin, The Oath (New York: Doubleday, 2012), passim.
40. Anthony Downs, An Economic Theory of Democracy (New York: Harper & Row,
1957).
41. Roger Lewin, “Self-Interest in Politics Earns a Nobel Prize,” Science,
Vol. CCXXXIV (November 21, 1986), p. 941.
42. Morris P. Fiorina, Congress: Keystone of the Washington Establishment, 2nd ed.
(New Haven, CT: Yale University Press, 1989).
43. This discussion leans heavily upon Keith Krehbiel, Information and Legislative
­Organization (Ann Arbor: University of Michigan Press, 1992); and Thomas W.
Gilligan and Keith Krehbiel, “Asymmetric Information and Legislative Rules with
a Heterogeneous Committee,” American Journal of Political Science, Vol. XXXIII
(May 1989), pp. 459–490.
44. William C. Mitchell, “Textbook Public Choice: A Review Essay,” Public Choice,
Vol. XXVIII (1982), p. 99.
45. Louis F. Weschler, “Methodological Individualism in Politics,” Public Administration Review, Vol. XLIII (May–June 1982), p. 294.
46. See Richard J. Fenno Jr., Congressmen in Committees (Boston, MA: Little, Brown,
1973). Fenno indicates that members of Congress are variously influenced by the
desires to be reelected, to help enact good public policy, and to acquire influence
in the House.
47. Those wishing to explore rational-choice theory further can begin with Kenneth A.
Shepsle and Mark S. Bonchek, Analyzing Politics: Rationality, Behavior, and Institu­
tions (New York: Norton, 1997). For a critique, see Donald P. Green and Ian ­Shapiro,
Pathologies of Rational Choice Theory (New Haven, CT: Yale University Press,
1994).
48. See Philip J. Trounstine and Terry Christensen, Movers and Shakers: The Study of
Community Power (New York: St. Martin’s, 1982).
49. For a concise summary and discussion of the Dodd-Frank Act, see Allen Blinder,
After the Music Stopped: The Financial Crisis, the Response, and the Work Ahead
(New York: Penguin Press, 2013), Chap. 11.
50. Marver H. Bernstein, Regulating Business by Independent Commission (Princeton,
NJ: Princeton University Press, 1955), pp. 74–95.
51. George Stigler, “The Theory of Economic Regulation,” Bell Journal of Economic
and Management Science, Vol. 2 (Spring 1971), pp. 3–21.
52. Barbara J. Nelson, Making an Issue of Child Abuse (Chicago: University of Chicago Press, 1984); I. M. Destler, American Trade Politics, 4th ed. (Washington, DC:
Institute of International Economics, 2005); Adam Sheingate, The Rise of the Agricultural Welfare State (Princeton: NJ: Princeton University Press, 2001); and Paul
Charles Milazzo, Unlikely Environmentalists: Congress and Clean Water, 1945–1972
(Lawrence, KS: University Press of Kansas, 2006).
53. See Harry Eckstein, “Case Study and Theory in Political Science,” in Fred I.
Greenstein and Nelson W. Polsby, eds., The Handbook of Political Science, Vol. 7,
Strategies of Inquiry (Reading, MA: Addison-Wesley 1975), pp. 79–137.
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2
The Policy-Makers
and Their Environment
I
n the American political system, political power is fragmented and ­dispersed
by constitutional prescription and political practice. Many points of official decision-making exist, and a multitude of officials share in the exercise
of political power and the formation of public policy. At the national level, the
Framers of the Constitution provided for the separation of power, distributing it among the legislative, executive, and judicial branches of the national
government. Thus, Article I provides that “all legislative Powers herein granted
shall be vested in a Congress of the United States. . . .” Article II states that “the
executive Power shall be vested in a President of the United States of America.”
In turn, Article III declares that “the judicial Power of the United States, shall
be vested in one supreme court and such inferior Courts as the Congress may
from time to time ordain and establish.” This separation was reinforced by the
provision of different selection processes for officials in each branch. Thus,
the House of Representatives was to be chosen by the voters, the Senate by
the state legislatures (changed to the voters by the ­Sixteenth ­Amendment), the
president by the Electoral College, and the judges by the president with the
consent of the Senate. The Constitution also prohibits anyone from being a
member of more than one branch at the same time.
The separation of powers was not rigidly imposed, however. By the corollary principle of checks and balances, the Framers gave each branch some
means for interfering with—checking—the exercise of power by the other two
branches. As James Madison stated in Federalist no. 51: “Ambition must be
made to counteract ambition.” Thus, Congress is given primary responsibility
for the enactment of legislation, but the president is authorized to recommend
matters for its attention and to veto laws, although the veto can be overcome
by a two-thirds vote in both houses. Many presidential appointments, including those to the federal courts, require Senate approval. The Supreme Court
can declare actions by the other branches unconstitutional, but Congress can
regulate the jurisdiction of the courts and the kinds of cases they may hear.
What the Framers really created was a set of separate institutions sharing
37
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38
2
The Policy-Makers and Their Environment
power. Professor Charles Jones puts it somewhat differently when he states
that “these separated institutions often compete for shared powers!”1
The Framers’ intent was to use the principles of separation of powers and
checks and balances to prevent the abuse of power and the intrusion by government on individual liberty. Whatever their influence in these respects, these
principles have had other consequences. One is the decentralization of power.
Another is creation of the need for cooperation and deference among the
branches in order for the government to act effectively. Indeed, if each branch
were to insist on the fullest exercise of its prerogatives, the government would
end in deadlock. A third is to make American government inefficient in its operation. Much time and effort are often required to make policy decisions, and
the content of the resulting policy is often diluted and moderated.
Conventional wisdom holds that the national government performs more
effectively when both houses of Congress and the presidency are controlled
by the same party. However, divided governments, where one party controls
the White House (usually the Republicans) and the other party controls one
or both houses of Congress, existed for all but twelve years during the 1969–
2014 period. This condition is thought to contribute to gridlock, a situation
in which partisan, ideological, and other differences make it difficult for the
government to deal effectively with important problems. If one believes that
the government should act decisively on all problems soon after they reach the
policy agenda, something of a case could be made for the gridlock contention.
In actuality, it has frequently taken the government many years, even decades,
to adopt legislation on such contentious matters as federal aid to education,
medical care, civil rights, and welfare reform.
Further doubt on the divided government-gridlock contention was cast by
Professor David R. Mayhew’s study of the 1946–1990 era.2 Using as his criteria
the enactment of important legislation and the conduct of major congressional
investigations of alleged misconduct in the executive branch, he finds that there
are no major differences in governmental output between periods of divided
and unified government. Mayhew was not concerned with whether presidents
got what they wanted from Congress or with the ideological hue of legislation.
However, another study determined that, when seriously considered, more
important legislation failed to be enacted under divided government than under unified government. Legislation opposed by the president was especially
likely to fail under divided government.3 These studies leave one uncertain as
to the validity of the argument that unified party control is a requisite for effective national governance.
Power in the American political system is further dispersed by the principle
of federalism, which created separate national and state governments, each
deriving its power from the Constitution. Essentially, the Constitution assigns
delegated and implied powers to the national government and unspecified reserved powers to the state governments. The basic arrangement is summarized
by the Tenth Amendment: “The powers not delegated to the United States by
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The Policy-Makers and Their Environment39
the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”
Before moving on, it should be pointed out that the Constitution also divides power between government and the populace. Note that phrase in the
Tenth Amendment, “or to the people.” The Bill of Rights places a variety of
matters beyond the reach of government, such as freedom of speech, press,
religion, and assembly. These are not absolute, however. Other limitations are
found in the main body of the Constitution. American government is limited
government, even if it comes to be called “big government.”
Article I, Section 8 of the Constitution delegates to Congress such powers
as those to tax and spend for the general welfare, to regulate interstate and foreign commerce (the “commerce clause”), to coin money and regulate the value
thereof, to establish post offices and post roads, to raise and support armies
and a navy, and to declare war. Congress is also authorized “to make all laws
which shall be necessary and proper for carrying into execution” these and
other powers assigned to the national government. The “necessary and proper”
clause has served to significantly enhance the scope of the national government’s power.
As usually interpreted, the Constitution does not reserve any specific policy
areas for the states. Consequently, the national government can deal with any
or all matters where action can be justified as exercises of its delegated and implied (necessary and proper) powers. Constitutional “habits” persist, however,
and help impose political limits on the national government. Constitutional
support could likely be found for a national uniformed police force but that
would not make it politically acceptable to most Americans.
The reach and power of the national government have undergone continual
expansion since the Constitution’s adoption, albeit more rapidly in some eras
than others. Today the national government is vastly more active and powerful
than it was in 1850, 1900, or even 1950. National policies now apply to many
areas once regarded as the domain of the states; examples include public education, social welfare, highway construction and maintenance, and environmental protection.
Much of what the national government does is constitutionally based
on the commerce clause—the authority to regulate interstate and foreign
­commerce. Since the 1930s, the commerce clause has been given an expansive
interpretation by the Supreme Court. In 1995, however, the Court, by a 5–4
majority, declared unconstitutional the Gun-Free School Zones Act of 1990.
This law, which made possession of a gun within 1,000 feet of a school a federal crime, was held to be “a criminal statute that by its terms has nothing
to do with ‘commerce’ or any sort of economic enterprise, however broadly
one might define those terms.” Not since 1936, when it struck down a law
­regulating wages and hours in the coal industry, had the Court declared a
­congressional action unconstitutional as in excess of the commerce clause. In
2000, the Court held unconstitutional the Violence Against Women Act, which
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40
2
The Policy-Makers and Their Environment
made gender-motivated violence a crime. It too was held to exceed congressional power under the commerce clause.4
Notwithstanding the national government’s growth, the state governments
(and their local governments) continue to be important policy-makers in many
areas, including law enforcement, definition and protection of property rights,
public education (both higher and lower), land-use regulation, construction
and maintenance of highways and streets, occupational licensing, gambling,
mental-health services, and public sanitation services. Indeed, some observers contend that there has been a “resurgence of the states” as a consequence
of institutional, legislative reapportionment; increased cooperation among the
states; and distrust and lack of confidence in the national government.5
In the nineteenth century, the dominant conception of national–state relationships was that called dual federalism. Each level of government had its
distinct functions that it handled independently of the other. In the twentieth
century, dual federalism gave way to cooperative federalism, where all levels of
government—national, state, and local—cooperate in the development and implementation of public policies. Thus, the state and the local governments play
a major role in the enforcement of national environmental pollution-control
and welfare programs. One would be hard-pressed to identify a policy area in
which they have no involvement or effect.
Although the Constitution does not require the states to employ the principle of separation of powers in organizing their governments, they all do so.
And only the state of Nebraska has chosen to have a one-house legislature.
The states have created many local governments (more than 89,000 separate entities in 2012; see Table 2.1) to handle the local administration of state
functions, such as law enforcement and public education, and to provide
for local self-government. In practice, local governments frequently operate
with only limited supervision and control by the state agencies and officials.
Along with the states they provide additional arenas for policymaking and
implementation.
The existence of this multitude of governments—national, state, and­
local—together with the separation of powers enables interest groups and
­others to engage in “arena shopping.” Those dismayed with policy produced by
one level or branch of government may look elsewhere for satisfaction. Thus,
TABLE 2.1
Local Governments, 2012
Counties
Municipalities
Townships
Special districts
School districts
Total
3,031
19,522
16,364
37,203
12,884
89,004
Source: United States Bureau of the Census: 2012 Census of Governments.
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The Policy Environment
41
environmental groups in the 1960s and 1970s shifted their attention from the
state level to Washington and to the judiciary in search of pollution control
and environmental protection. However, after the early 1990s, when the national government became unresponsive, environmental groups shifted focus
and sought favorable action from the Pacific Coast and Northeastern states.
Economic development interests generally have found state and local governments more inclined to do their bidding. State governments often tumble all
over themselves offering incentives to entice new businesses.
In recent years, business groups have become dissatisfied with the diversity of state laws on product liability and the large monetary awards sometimes granted to aggrieved consumers by state courts. Although product
liability traditionally has been handled by the states, organized business has
turned to Washington for succor, where they have drawn support from the
Republicans in Congress. Their goal is a national product liability law that
would preempt state laws, limit awards for actual and punitive damages, and
make it more difficult for plaintiffs to win damage suits. Congress passed
such a bill in 1996 only to have it vetoed by President Bill Clinton. The struggle continues.
Describing and analyzing policymaking at all three levels of government is
a task too extensive for one book. Hence, the remainder of this book will focus
on the national government’s action on domestic issues but will not wholly exclude foreign policy, American state and local governments, or other political
systems. This chapter will begin by examining the environment in which policymaking occurs and which helps to shape its actions—something that tends
to be overlooked by rational-choice theory but to which we are alerted by systems theory. Then we will survey the official and unofficial participants in the
policymaking process.
The Policy Environment
Policymaking cannot adequately be studied apart from the environment or context in which it occurs. According to systems theory, demands
for policy actions stem from problems and conflicts in the environment and
are transmitted to the political system by groups, officials, and others. At the
same time, the environment both limits and directs what policy-makers can
effectively do. The environment, broadly viewed, includes geographic characteristics such as climate, natural resources, and topography; demographic
variables such as population size, age distribution, racial composition, and
spatial location; political culture; social structure, or the class system; and the
economic system. Other nations become an important part of the environment
when foreign and defense policies are involved. The discussion here focuses on
a pair of these environmental factors that have received much attention from
political scientists (although not always from a policy-studies’ perspective): political culture and socioeconomic conditions.
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42
2
The Policy-Makers and Their Environment
Political Culture
very society has a culture that differentiates its members’
E
values and lifestyles from those of other societies. The anthropologist Clyde Kluckhohn defined culture as “the total life way of a people,
the social legacy the individual acquires from his group. Or culture can be
regarded as that part of the environment that is the creation of man.”6 Most
social scientists seem to agree that culture shapes or influences social action
but does not fully determine it. Culture is only one of many factors that may
give form and direction to human behavior.
We are interested here in the portion of the general culture of a society
that can be designated political culture: widely held values, beliefs, and attitudes on what governments should try to do, how they should operate, and
relationships between the citizen and government.7 Political culture is transmitted from one generation to another by socialization, a process in which the
individual, through many experiences with parents, friends, teachers, political
leaders, and others, learns politically relevant values, beliefs, and attitudes. Political culture, then, is acquired by the individual, becomes a part of his or her
psychological makeup, and is manifested in his or her behavior. Within a society, variations among regions and groups may result in distinctive subcultures.
In the United States, variations are noticeable in political culture (subcultures)
between North and South, black and white, and young and old.
A society’s political culture is not static; it changes and evolves over time,
though the pace of change among its components will vary. As a consequence
of the Great Depression and the New Deal, most Americans tolerate or support
much more government intervention in the economy than they once did. In
recent decades, attitudes have changed greatly on commercial gambling. Once
viewed as evil and criminal, it was generally banned. (Nevada was an exception,
having legalized gambling in 1931.) Now only three states do not have some
form of legal gambling—lotteries, casinos, parimutuel betting, and so forth.
Gambling is entertainment and a way to raise needed government revenue.
On the other hand, Americans continue to be distrustful or skeptical of government. The Constitution was framed and adopted in an era when people
distrusted government. Hence, federalism and the separation of powers were
used to disperse governmental power and prevent its abuse. “Distrust of government is as American as apple pie,” says Professor Samuel Huntington.
“It has historically been a central, continuing, and distinctive element of the
American political tradition and the idea that people should trust their government is a radical departure from that tradition.”8
Professor Paul Starr argues that “it is the anti-governmental attitude on
the [political] right that particularly distinguishes Americans’ political culture.
American conservatives have been far more anti-statist than European conservatives, who have often played a central role in expanding the welfare state.”9
The Tea Party, which emerged soon after the inception of the Obama administration, appears to be an especially strong expression of distrust of government
rather than an indication of cultural change.
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The Policy Environment
43
Political scientist Daniel J. Elazar contends that there are three identifiable political cultures—individualistic, moralistic, and traditionalistic—and
mutations thereof scattered throughout the United States.10 The individualistic
political culture emphasizes private concerns and views government as a utilitarian device to be used to accomplish what the people want. Politicians are
interested in holding office as a means of controlling government’s favors or
rewards.
The moralistic political culture views government as a mechanism for advancing the public interest. Government service is considered public service.
More governmental intervention in the economy is accepted, and there is
much public concern about policy issues. Moralistic political culture is strong
in states like Minnesota and Wisconsin, whereas individualistic political culture is dominant in Illinois, New York, and Louisiana.
The traditionalistic political culture takes a paternalistic and elitist view
of government and favors its use to maintain the existing social order. Real
political power centers in a small segment of the population, and most citizens are expected to be relatively inactive in politics. Traditionalistic political
culture has been strong in some southern states, which have been marked by
low levels of political participation. Such variations in political culture clearly
compound the tasks of political description and analysis.
No attempt is made here to fully describe the political culture of the United
States or that of any other society. Rather, the discussion is confined to indicating and illustrating some of the implications and significance of political
culture for policy formation.
The sociologist Robin M. Williams identifies a number of “major value orientations” in American society, including individual freedom, equality, progress, efficiency, and practicality.11 Values such as these—and others, such as
democracy, individualism, and humanitarianism—clearly have significance for
policymaking. For example, the American approach to regulating economic
activity has been practical or pragmatic rather than ideological. It has emphasized particular solutions to present problems rather than long-range planning
or ideological consistency. Moreover, demand for individual freedom has created a general presumption against policies restricting private activity and in
favor of the broadest scope possible for private action.
Political culture also conditions the implementation of regulatory policies.
This is well illustrated by Steven Kelman in his study of the enforcement of
industrial health and safety policies in Sweden and the United States. Swedish
political culture, which encourages deferential and accommodationist behavior, enables Swedish officials to use informal, consensual methods in rule enforcement. In contrast, America’s self-assertive or adversarial political culture
stimulates officials to be formal, aggressive, and inclined to “go by the book”
and to develop an “us versus them” stance toward businesses. Executives are
likely to share these attitudes. American safety inspectors are much more inclined to levy penalties (though they are not very stiff) than are their Swedish
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44
2
The Policy-Makers and Their Environment
counterparts, who are disposed to make informal recommendations to employers on how to improve safety conditions. Kelman estimated that there was
not a large difference in compliance rates between the two countries.12
Stress on individualism and private property finds expression in the notion (often departed from in practice) that people should generally be free
to use their property as they see fit. Land-use controls and municipal zoning
demonstrate that this notion is subject to limitations. The American emphasis
on individualism has both slowed the development of welfare programs and,
once they have come into being, helped to keep them limited and made them
subject to much criticism and complaint. Large numbers of Americans believe
that people should be expected to take care of themselves.
Differences in public policy and policymaking in various countries can be
accounted for at least partially by variations in political culture. Public programs for medical care are of longer standing and are more numerous and
extensive in Western Europe than in the United States because there public
expectation and acceptance of such programs are greater. Again, more people in Great Britain approve of governmental ownership than in the United
States, where support for it is quite narrow.13 Thus, we find considerably more
governmental ownership of business and industry in Great Britain. Americans
much prefer governmental regulation to ownership when control seems necessary. For example, dislike for “nationalization,” even if temporary, deterred the
Obama administration from taking over some large banks during the 2008–
2009 financial crisis. It would have been a reasonable and more effective response to the situation.
Professor Karl W. Deutsch suggests that people’s time orientation—their
view of the relative importance of past, present, and future—has implications
for policy formation. A political culture oriented more to the past than to the
present or future may better encourage preserving monuments than making
innovations, and may help stimulate the enactment of legislation on old-age
pensions years before expanding public higher education. Great Britain adopted an old-age pension law in 1908 but did not significantly expand public
higher education until after 1960. In contrast, Deutsch notes that the United
States, with a more future-oriented culture, adopted legislation providing support for land-grant colleges in 1862 and for social security in 1935.14
Gabriel A. Almond and Sidney Verba differentiate among parochial, subject, and participant political cultures.15 In a parochial political culture, citizens have little awareness of or orientation toward either the political system
as a whole, the input process, the output process, or the citizen as a political participant. The parochials expect nothing from the system. It is suggested
that some African chiefdoms, kingdoms, and tribal societies as well as modern
Italy illustrate parochial political cultures.
In a subject political culture like that of Germany, the citizen is oriented
toward the political system and the output process, yet has little awareness of
input processes or of the individual as a participant. He or she is aware of governmental authority and may like or dislike it, but is essentially passive. The
person is, as the term implies, a subject.
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The Policy Environment
45
In a participant political culture, which Almond and Verba say exists in
the United States, many citizens have a comparatively high level of political
awareness and information along with explicit orientations toward the political system as a whole, its input and output processes, and meaningful citizen
participation in politics. They also more likely understand how individuals and
groups can influence decision-making.
Some of the implications of these differences in political culture for policy
formation seem readily apparent. Citizen participation in policy formation in a
parochial political culture is essentially nonexistent because government matters little to most citizens. Individuals in a subject political culture may believe
that they can do little to influence public policy, whether they like it or not.
This belief may lead to passive acceptance of governmental action that may
be authoritarian in style. In some instances, frustration and resentment may
build until redress or change is sought through violence. In the participant political culture, individuals may organize themselves into groups and otherwise
seek to influence governmental action to rectify their grievances. Government
and public policy are thus viewed as controllable by citizens. It can also be assumed that more demands will be made on government in a participant political culture than in either a parochial or a subject culture.
Let us return to an earlier point. Political culture helps shape political behavior; it “is related to the frequency and probability of various kinds of behavior and not their rigid determination.”16 Common values, beliefs, and attitudes
inform, guide, and constrain the actions of both decision-makers and citizens.
Political cultural differences help ensure that public policy will be more likely
to favor economic competition in the United States, where individual opportunity is a widely held value, but it is more likely to tolerate industrial cartels
in Germany, where economic competition has not been highly valued. Some
political scientists shy away from using political culture as an analytic tool
because they see it as too imprecise and conjectural, resistant to quantification, and subject to varying interpretations. This undervalues the usefulness of
political culture for the analysis and explanation of policy.
The term socioeconomic conditions is used here because it
is often impossible to separate social and economic factors
as they impinge on or influence political activity. The levels
of educational attainment in a society, for instance, have both social and economic qualities and effects. For instance, people with more education are
more likely to earn more and to vote than those with less education.
Public policies often arise out of conflicts among groups of people, private
and official, with differing interests and desires.17 This origin especially applies
to regulatory and redistributive policies. One of the prime sources of conflict,
particularly in modern industrial societies, is economic activity. Conflicts may
develop between the interests of big business and small business, employers
and employees, wholesalers and retailers, bankers and securities dealers, hospitals and medical-insurance companies, farmers and agricultural-commodity
importers, and consumers and manufacturers.
Socioeconomic
Conditions
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46
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The Policy-Makers and Their Environment
Groups that are underprivileged or dissatisfied with their relationships
with other groups in the economy may seek governmental assistance to improve their situation. Thus, it has been labor groups, dissatisfied with the
wages resulting from interacting with corporate employers, that have sought
minimum-wage legislation. Consumer groups, who feel disadvantaged in the
marketplace, have sought protection against unwholesome foods and hazardous products. In a private conflict, it is customarily the weaker or disadvantaged party, at least in a comparative sense, who seeks to expand the conflict
by bringing government into the fray. The dominant group, which can achieve
its goals satisfactorily by private action, has no incentive to bring government
into the conflict and instead usually seeks to privatize the conflict by contending that governmental action is unnecessary, improper, or unwise.
Satisfactory relationships between groups may be disrupted or altered by
economic change or development. Those who feel adversely affected or threatened may then demand government action to protect their interests or establish a new equilibrium. Rapid industrialization and the growth of big business
in the United States in the latter part of the nineteenth century produced new
economic conditions. Farmers, small-business operators, reform elements,
and other aggrieved groups called for government action to control big business (also known as “the trusts”). The eventual results were the enactment
by Congress of the Sherman Act in 1890 and the Clayton and Federal Trade
Commission Acts in 1914. More recently, American manufacturing companies,
economically threatened by an increasing volume of less costly imported products, have sought and sometimes obtained both voluntary and mandatory import quotas. The Omnibus Trade and Competitiveness Act of 1988 authorizes
retaliation against countries discriminating against the sale of American products while themselves benefiting from American market opportunities.
It is a truism that a society’s level of economic development will impose
limits on what government can do in providing public goods and services to
its citizens. Nonetheless, this fact is occasionally overlooked by those who assume that the failure of governments to act on problems is invariably due to
official recalcitrance or unresponsiveness or citizens’ reluctance to pay higher
taxes, rather than to limited resources. Clearly, one factor affecting what governments can provide in the way of welfare programs is the availability of economic resources.
A scarcity of economic resources (actual or perceived) will, of course, be
more limiting in many of the developing countries than in an affluent society
such as the United States, although even American governments do not have
the funds to do everything that everyone wants. National health-insurance legislation, which seemed highly likely to be adopted in the 1970s, lost its appeal
in an earlier era of large budget deficits. So, too, has there been delay in improving and repairing highways, bridges, and other parts of the transportation
infrastructure because of the large costs entailed.
Within the United States, economic resources are very unequally distributed among state and local governments, affecting their capacity to deal with
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The Policy Environment
47
such social problems as inadequate public education, poverty, overcrowded
prisons, and congested traffic. Consequently, among the states variations are
substantial in welfare spending, and within the states educational expenditures (as measured by expenditures per student) differ among school districts. Pressed for funds, cities devote most of their resources to police and
fire protection and street maintenance while cutting back on “amenities” such
as libraries, parks, and recreation programs. In some states, unequal funding
among school districts is a divisive and seemingly intractable political issue.
The ways in which socioeconomic conditions influence or constrain public policies in the states have been extensively analyzed by political scientists.
Controversy has developed over the relative influence of political and socioeconomic variables on policy. One of the most prominent examinations of this
question is Thomas R. Dye’s study of policy outputs in the fifty states,18 which
is guided by systems theory. Dye contends that the level of economic development (as measured by such variables as per capita personal income, percentage of urban population, median education, and industrial employment) had
a dominant influence on state policies (as measured by expenditures) on such
matters as education, welfare, highways, taxation, and public regulation. Comparing the effects of economic development with those of the political system,
he found that political variables (voter participation, interparty competition,
political-party strength, and legislative apportionment) had only a weak relationship to public policy. Dye summarized the findings of his sophisticated statistical analysis:
Much of the literature in state politics implies that the division of the twoparty vote, the level of interparty competition, the level of voter participation, and the degree of malapportionment in legislative bodies all influence
public policy. Moreover, at first glance the fact that there are obvious policy
differences between states with different degrees of party competition, Democratic dominance, and voter participation lends some support to the notion
that these system characteristics influence public policy. ...
However, partial correlation analysis reveals that these system characteristics have relatively little independent effect on policy outcomes
in the states. Economic development shapes both political systems and
policy outcomes, and most of the association that occurs between system
characteristics and policy outcomes can be attributed to the influence of
economic development. Differences in the policy choices of states with different types of political systems turn out to be largely a product of differing socioeconomic levels rather than a direct product of political variables.
Levels of urbanization, industrialization, income, and education appear
to be more influential in shaping policy outcomes than political system
characteristics.19
Dye did not argue that political variables had no influence whatsoever on state
policies; rather, in his estimation they were clearly subordinated to socioeconomic factors in explaining differences in state public policies.
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48
2
The Policy-Makers and Their Environment
But is public policy really primarily an outcome of some kind of socioeconomic determinism? Two scholars cautioned against “simple acceptance” of
such a conclusion.20 Not discounting socioeconomic factors’ influence on policy outputs, they pointed out a number of problems and limitations in these
studies.
First, there is a tendency to exaggerate the strength of the economy-policy
relationship. Thus, they state, “Dye reports 456 coefficients of simple correlations between policy measures and his four economic measures of income,
urbanism, industrialization and education, but only 16 of them (4 percent) are
strong enough to indicate that an economic measure explains at least one-half
the interstate variation in policy.”21 This result leaves quite a bit unexplained
statistically. Second, the political variables used in such studies have been limited in scope, focusing on only a few aspects of the political process. Third,
there is a tendency to overlook variations in the influence of economic factors
on policymaking. Officials in local governments appear more strongly influenced by economic factors than are state officials.
Another limitation is that most of these studies only consider statistical relationships among various political and socioeconomic variables and public
policies. If, when condition A exists, policy B usually occurs, and the relationship is not caused by some third factor, then we can predict that when A exists,
B will occur. Predictions are not explanations, however, and we are still left
with the task of explaining how political decisions are actually made. If per
capita income is directly related to the level of welfare spending, then we must
try to account for the relationship. This task is neither insignificant nor easy.
Obviously, policy decisions are made by public officials and not socioeconomic variables. No one has identified the pathways by which socioeconomic
­variables are translated into public policies.
Two conclusions can be fairly drawn from this discussion. One is that to
understand how policy decisions are made and why some decisions are made
rather than others, we must take into account social and economic as well as
political factors. The second is that whether socioeconomic factors are more
important than political factors in shaping public policy remains an open
question. Though Dye’s findings have been criticized, they have not been
directly refuted.22 Most research along this line has been focused on the
­American states, and it is less than conclusive. Political scientists continue to
spend most of their time studying the policy effects of political variables, with
which they are most comfortable.
Social change, and the conflict that often accompanies it, stimulates demands for governmental action. The employment of a large number of women
outside the home, the women’s movement, and increasing interest in women’s
rights in the post–World War II era produced demands for favorable governmental action on women’s issues. In consequence, greater protection has been
provided for women’s rights, including equal pay for equal work, equal employment opportunity, equal support for women’s athletic programs in colleges
and universities, the right to terminate pregnancies by abortion, and, in some
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The Policy Environment
49
states, comparable pay for comparable work and parental leave. A major setback occurred in the early 1980s when the Equal Rights Amendment fell three
votes short of ratification by the states.
The use of narcotic drugs was legal in the United States until the Harrison
Act of 1914 and the Marijuana Act of 1936.23 Efforts to combat drug usage intensified. Then in the 1960s the spread of the drug culture, especially among
the middle and upper classes, led to the lessening of penalties for the possession and use of marijuana. Many people, including prominent conservatives,
advocated legalization of marijuana and other drugs. A revival of strong antidrug sentiment occurred in the 1980s, however, partly because of the highly
publicized drug-induced death of a college basketball star. Stiff penalties were
imposed for drug usage. A vigorous antidrug enforcement campaign was
launched. Indeed, a “war on drugs” was declared. The nation’s prisons were
filled with persons convicted of drug law violations. Strong value conflicts exist, and persist, on issues like these, and public officials find themselves hardpressed to craft acceptable policy responses.
Many scientific and technological developments enable people to live longer, more satisfactory, and more productive lives. The downside, however, is
that they also provide opportunities for undue enrichment or create ethical or
moral dilemmas when all cannot afford, or benefit, from new drugs or devices,
for example. Demands may arise for government to provide support or impose
restraints. Human cloning and the production of genetically modified agricultural plants are a case in point.
In 1997, Scottish cloning researchers created Dolly the sheep. Soon after,
President Bill Clinton issued an executive order banning federal funding of
research on human cloning. The next year a bill to prohibit human cloning
failed in the Senate because opponents believed its terms were too sweeping.
A distinction is often made between therapeutic cloning, intended to produce
embryos for medical research, and cloning for reproductive purposes.24 Medical researchers and their supporters believe that therapeutic cloning can contribute to the development of new treatments for diseases. Right-to-life groups,
who have been joined by some environmental groups, favor an across-theboard ban on human cloning. The controversy continues.
Genetically modified farm plants, made possible by recombinant DNA research and experimentation, became commercially available in the mid-1990s.
Resistant to plant diseases, adverse weather conditions, and pesticides, these
transgenic plants such as corn and soybeans grow faster and yield more. They
promise large profits to the companies developing and distributing them and
to farmers growing them. Genetically modified crops are now extensively
grown in this country. Supporters say they have great potential for increasing the world’s food supply. Others, however, see a dark side to bioengineered
crops, fearing they may have unanticipated adverse ecological and ­human
consequences, sometimes referring to products made from them as
“Frankenfoods.” European countries have banned their importation. In the United
States, the Department of Agriculture, the Food and Drug Administration, and
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50
2
The Policy-Makers and Their Environment
the Environmental Protection Agency share jurisdiction to ensure the safety of
transgenic crops. Critics, including the National Academy of Sciences, question the adequacy of the agencies’ efforts.25
The Official Policy-Makers
Official policy-makers have the legal authority to engage in the formation of public policy. (Of course, some who have the legal authority to act may
in fact be significantly influenced by others, such as important constituents
or pressure groups.) These include legislators, executives, administrators, and
judges. Each performs policymaking tasks that are at least somewhat functionally different from those of the others.
It is useful to differentiate between primary and supplementary policymakers. Primary policy-makers have direct constitutional authority to act;
for example, Congress does not have to depend upon other government units
for authorization to enact legislation. Supplementary policy-makers, such as
national administrative agencies, however, operate on the basis of authority
granted by others (primary policy-makers). This puts secondary policy-­makers
in a dependency relationship. Administrative agencies, such as the Federal
Trade Commission and the Bureau of Land Management, that derive their
operating authority from congressional legislation will typically need to be
responsive to congressional interests and requests. Congress may retaliate
against unresponsive agencies by imposing restrictions on their authority or
reducing their budgets. On the other hand, Congress has little need to be solicitous about agency interests.
The following survey of official policy-makers is intended to convey a notion of their general role in policy formation, not to catalogue all their powers,
activities, and impacts.
he easy response to the question “What do legislatures
T
do?” is that they legislate—that is, they are engaged in the
central political tasks of lawmaking and policy formation in a political system.
It cannot be assumed, however, that a legislature, merely because it bears that
formal designation, actually has independent decision-making functions. This
is a matter to be determined by empirical investigation rather than by recourse
to definition.
Unlike those in most other countries, legislatures at all levels in the United
States do typically legislate in an independent decisional sense. At the national
level, policies on such matters as taxation, civil rights, social welfare, consumer protection, economic regulation, and environmental protection tend to
be shaped in substantial degree by Congress through the enactment of substantive and appropriations legislation. The committee and subcommittee system and legislative norms (accepted rules of conduct) encouraging members
to concentrate on particular policy areas have provided Congress with its own
Legislatures
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The Official Policy-Makers
51
policy specialists. Specialization, in turn, gives members more opportunity to
influence policy in their areas of expertise, whether tax policy, welfare programs, or banking regulation.
The capacity of Congress to engage effectively in policymaking has been
much enhanced by its expanded staff assistance. As the issues that members
are called upon to resolve become more complex, so their need for technical
and expert assistance becomes greater. Congressional staff assistance falls into
three categories:
1. Personal staff: These people work for the individual members of Congress,
either in Washington or in their home districts and states. More than
11,000 persons serve as staff aides to members. The average House
member has a full-time staff of fourteen; senators’ staffs are typically
larger. Some staffers handle routine office duties and constituency
matters; others have important legislative responsibilities. Legislative
assistants, for instance, write speeches, draft bills, monitor committee
hearings, negotiate with other staffs and lobbyists, suggest policy
initiatives, and otherwise assist members in handling their policymaking
responsibilities.
2. Committee and subcommittee staffs: Members of these staffs proliferated
in the past two or three decades and now number in the thousands.
The professional members of committee staffs, usually subject-matter
experts, often have much influence on the development of legislation—
drafting bills, developing political support, working with agency
officials, fashioning compromises on disputed provisions, and the like. A
committee’s staff is divided between the majority and minority members,
with the majority getting the lion’s share. Complaints that committee
staffs had become too large and were contributing to congressional
inefficiency culminated in action in 1995 by the new Republican majority
to reduce by one-third the size of House committee staffs. They have since
regained some of their size.
3. Institutional staff: Agencies providing information services to Congress
include the Congressional Research Service (part of the Library of
Congress), the Government Accountability Office, and the Congressional
Budget Office. These agencies, which are expected to perform in a
nonpartisan and objective manner, provide members of Congress with
research studies, policy evaluations, and budgetary data. Another agency,
the Office of Technology Assessment, was created to provide members
of Congress with needed objective analysis of complex scientific and
technical issues. When the Republicans took over in 1995, they ill-advisedly
opted to abolish OTA as an economy measure. Subsequently, the GAO
established a technology assessment unit.
This extensive staff assistance strengthens the policymaking capacity of
Congress and reduces its dependency upon others—the executive, administrative agencies, and interest groups—for information. Also, some staff members
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52
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The Policy-Makers and Their Environment
may act as policy entrepreneurs, scouting for matters on which Congress could
legislate or problems that might be investigated, or working to hinder proposals with which they disagree. Some members of Congress, especially senators,
overburdened with committee and subcommittee assignments or other duties,
may become overly dependent upon staff and become their captives.
Democratic government in modern societies is representative government.
Only in small communities can people directly govern themselves. Consequently, at the national level, democratic theory assigns to Congress the task of
representing the people in the governing process.26 People expect their representatives to allocate benefits (public buildings, highways, and research facilities) to their districts and states; to assist them in resolving their difficulties
with Social Security, veterans’ benefits, and regulatory and other government
programs; and to represent their interests in the course of making policy on
matters both large and small. It is this third aspect of representation that is of
concern to us in this book.
In enacting legislation, the members of Congress try to take care of state
and local interests as well as promote broad national or public interests. Former Speaker of the House Thomas (“Tip”) O’Neill often said that “all politics
are local.” Some critics allege that many of the members of Congress are much
too caught up in local, or parochial, interests, acting more as local ambassadors than national legislators. Certainly, many members of Congress do
experience many demands and pressure from some of their constituents and
narrowly based interests.
However, they are also under pressure from the White House and from
congressional leaders to act on behalf of more general and national interests.
As a result, members find themselves squeezed between conflicting demands.
Professor Walter A. Rosenbaum portrayed the effects of this condition on energy policymaking in this manner: “Thus, representatives and Senators must
fashion a national energy policy within a vortex of competing political powers and pressures: national interest versus local interests, and commitments
to party or congressional leaders versus loyalty to local power centers.”27
Legislators, of course, also have their own values, policy preferences, and re-­
election to think about in making decisions.
Congressional representation of the people on the whole is uneven. The
politically active, the powerful, and the well-to-do are more likely to have their
needs and interests responded to than are the politically quiescent, the weak,
and the poor or disadvantaged. These and other factors—such as the pounding
Congress has taken on radio and television talk shows and the perception that
it has not dealt adequately with major problems such as the national debt, immigration, and the drug traffic—have generated cynicism and distrust toward
Congress and the government. In a nationwide opinion survey taken in 1999,
75 percent of the respondents agreed with the statement that the government
“is run by a few big interests looking out for themselves.” Only 43 percent believed that the government paid at least some attention “to what the people
think when it decides what to do.”28
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The Official Policy-Makers
53
In the states, the legislature’s role often varies with the type of issue. Many
state legislatures, because of their limited sessions, rather “amateur” membership, and inadequate staff assistance, often cannot act with much independence on complex, technical legislative matters. They may simply enact bills
agreed upon elsewhere. In a fairly typical case several years ago, the Texas legislature passed a law on pooling (or unitization) for the common development
of oil fields. It was introduced after being agreed to and drafted by representatives of the major and independent petroleum producers’ organizations and
enacted with little change; the legislature did not really have the capacity to do
otherwise. On other issues, such as criminal legislation, the legislature clearly
does “legislate.” It does not require any special skills to make decisions, for
example, on the penalty for embezzlement or automobile theft. Such questions
do not demand scientific or technical determination.
The British Parliament has been said merely to consent to laws that are
originated by political parties and interest groups, drafted by civil servants,
and steered through the House of Commons by “the government” (the prime
minister and the cabinet). This view, however, is oversimplified. The government usually gets what it wants from Commons partly because it knows what
Commons will accept and requests only measures that are acceptable. Conversely, what is recommended by the government helps make it acceptable to
its members in Commons. In the course of approving legislation, Commons
performs the vital functions of deliberating, scrutinizing, criticizing, and publicizing governmental policies and activities and their implications for the
public. The legislative process in Congress also performs these functions.
To conclude, legislators are more important in policy formation in democratic than in authoritarian countries. In the latter, the legislature may simply
be a form of political theater used to convey the impression of public representation in policymaking. In the democratic category, legislatures generally
have a larger role in presidential systems (like the United States) than in parliamentary systems (like Great Britain). Some countries, such as Oman and
Saudi Arabia, have no legislature; public policies are executive or monarchic
products handed down to the people.
e live in an “executive-centered era,” in which the effectiveW
ness of government substantially depends upon executive
leadership and action in both the formation and execution of policy. This is
clearly true for the United States. Our attention now turns to the president.
The president’s authority to exercise legislative leadership is both clearly
established by the Constitution and legislation, and accepted as a practical
and political necessity. The fragmentation of authority in Congress stemming
from the committee system and the limitations on party leadership renders
that body incapable of fashioning a comprehensive legislative program. Congress in the twentieth century came to expect the president to present to it a
program of legislative recommendations. Presidents have acted accordingly.
Whether the Congress does what the president recommends is another matter.
The Executive
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The Policy-Makers and Their Environment
The president cannot command Congress; he or she can urge Congress to act,
and try to persuade and bargain, and appeal to the public for support, but he
or she cannot compel. Indeed, Professor George Edwards contends that the essence of successful presidential leadership is skill in identifying and exploiting
existing opportunities to obtain desired action, not in creating them through
persuasion.29
Presidents have varied in their success in gaining congressional support.
A standard measure of success is the percentage of votes won on issues in Congress on which the president has taken a clear stand.30 This does not mean that
the legislation involved was enacted into law. (It should be noted that the president takes a stand only on a small percentage of the matters voted on.) In the
past half-century, Lyndon Johnson was most successful, winning 82 percent of
the issues on which he took a stand. Jimmy Carter, in contrast, had difficulty
getting what he wanted from Congress, even though his party controlled both
houses. After getting much of what he wanted during his initial year in office,
Ronald Reagan’s success rate declined to less than 50 percent in 1987–1988,
when the Democrats controlled both houses.
In his single term in office, George Bush managed to prevail in 51 percent
of the issues on which he took a stand. Bill Clinton’s relationship with Congress, which was largely successful during his first two years in office, took a
nosedive in 1995 after the Republicans gained control of both houses of Congress for the first time since 1954. Subsequently, Clinton’s relationship with
Congress recovered somewhat, hovering in the 50 percent range.
George W. Bush took over the presidency following an election campaign
in which he said much about being “a uniter, not a divider,” and his capacity
for bipartisan leadership. Overall, in his eight years in office, he prevailed on
68 percent of the issues on which his position was apparent. Some of his victories were bipartisan, as on No Child Left Behind, but more were due to a high
degree of unity among Congressional Republicans, as Congress became more
polarized. Bush’s success rate plummeted after the Democratic 2006 takeover
of Congress to 38 percent in 2007 and 48 percent in 2008. This was the poorest
presidential performance on this measure in several decades.
Barack Obama did exceptionally well in his first two years in office, scoring
96 percent in 2009 and 86 percent in 2010. Democrats controlled both houses
of Congress. The Republicans, capitalizing on aversion for Obama’s legislative
achievements, and boosted by the Tea Party, gained a House majority in the
2010 elections. Obama’s support score fell to 56 percent in 2011.
Although the presidency may be a lonely place, the president does not
act alone on policy matters. The Executive Office of the President (EOP)
comprises several staff agencies whose raison d’être is advising and assisting the president in handling his responsibilities, including development and
implementation of policy (see Table 2.2). The White House Office includes
many personal aides and advisers, such as the chief of staff, the special assistant on national security affairs, the press secretary, and the counsel to
the president. The Office of Management and Budget assists the president
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The Official Policy-Makers
55
TABLE 2.2
Executive Office of the President
White House Office
Council of Economic Advisers
Council on Environmental Quality
National Security Council
Office of Administration
Office of Management and Budget
Office of National Drug Control Policy
Office of Policy Development
Domestic Policy Council
National Economic Council
Office of Science and Technology Policy
Office of the United States Trade Representative
Source: United States Government Manual, 2012.
in preparing the annual budget, supervising expenditures, and managing the
executive branch. Set up in 1947 to help the president coordinate foreign,
military, and domestic policies relating to national security, the National
Security Council has become a major player in developing and conducting
foreign policy. The Council of Economic Advisers, staffed by a handful of
professional economists, provides the president with information and advice
on issues of micro- and macroeconomic policy. These agencies and other
EOP units have taken shape in response to expanded presidential duties and
responsibilities in recent decades. Collectively, they have enhanced the president’s capacity to act, and frequently to act effectively, as a policy-maker.31
They help ensure that the president will make informed decisions, if not always wise decisions.
The president is able to take direct action on many matters because of his
constitutional executive authority and power delegated to him by Congress.
Foreign trade legislation gives the president discretionary power to raise
or lower tariffs on imported goods. Presidents have taken both kinds of actions. The Antiquities Act authorizes the president by executive order to set
aside public lands of historic and scientific interest as national monuments.
President Bill Clinton created several national monuments, including the 1.9
million-acre Grand Staircase-Escalante National Monument in Utah. Some
Utahans were outraged by this and called it a “land grab.” Near the end of his
term, President George W. Bush created a national monument in the Southwest Pacific covering 195,000 square miles. The area had few inhabitants
and there was little interest in its exploitation. Environmentalists were highly
pleased. The ability to take direct action sometimes permits the president to
circumvent the balkiness of Congress.
Perhaps the most extensive delegation of power came with the Economic
Stabilization Act of 1970, which gave the president a blank check to impose
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56
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The Policy-Makers and Their Environment
wage and price controls for combating inflation. President Nixon said he did
not want this authority and would not use it if it were granted. Concerned
about the state of the economy and its importance for his reelection, he
subsequently changed his mind and surprised the nation with a ninety-day
price-wage freeze in August 1971. This decree was followed by systems for
mandatory and voluntary price and wage controls until the whole unpopular
effort was abandoned in 1974. Congress repealed the statute.
In foreign and military policy, which often merge, the president has greater
constitutional authority and operating freedom than in domestic policy. Foreign policy of the United States is largely a product of presidential leadership
and action. American policy toward Vietnam, as we well know, was shaped
by the presidents in office between 1950 and 1975. The decision to seek more
open and friendly relations with the People’s Republic of China in the early
1970s was President Nixon’s; the decision to go to war with Iraq in 2003 was
made by President George W. Bush, with the help of his neoconservative advisers. Much of foreign policy is the domain of the executive, not only in the
United States but also elsewhere in the world, as events in the Middle East
continue to demonstrate.
In recent decades, though, Congress has sought to expand its role in foreign policy. One manifestation was the War Powers Resolution of 1973, which
was stimulated by the Vietnam War. Enacted over President Nixon’s veto, the
resolution requires the president to consult with Congress in “every possible
instance” involving use of American armed forces in hostile situations. The
president must report to Congress within forty-eight hours after using the
forces. Unless Congress provides otherwise, military action must be halted
within sixty to ninety days. Presidents have been highly critical of the resolution as an improper intrusion in their constitutional domain, and their compliance with it has been spotty at best.32 Congress was also the source of much
opposition to the Reagan administration’s military and financial involvements
in Central America. No longer can presidents count on bipartisan support for
military and foreign-policy actions as they could in the first decade or two after World War II. By no means is Congress simply a rubber stamp for presidential initiatives. The following Somali case is illustrative.
In early December 1992, shortly before he left office, President George
Bush sent several thousand U.S. troops to Somalia as part of a multination
humanitarian effort to relieve famine in that nation.33 He explained that the
troops were being sent only to ensure that food supplies were moved to the
starving people; the troops would not be used to “dictate political outcomes”
or to “engage in hostilities.” Subsequently, the conduct of the Somali operation became the responsibility of the Clinton administration. Unfortunately,
hostilities did erupt. In June 1993, twenty-three Pakistani peacemakers were
killed. Four U.S. soldiers were killed in August when their vehicle struck a land
mine. Then, early in October, eighteen U.S. soldiers died and scores more were
wounded during a botched raid on a Somali warlord. (This was the basis for
the movie Black Hawk Down.)
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The Official Policy-Makers
57
As these events occurred, Congressional support for the Somali mission
dissipated and Congress, with strong bipartisan support, began to consider
legislation calling for the withdrawal of the American troops. So pressured,
­President Clinton announced that the troops would be withdrawn by March 31,
1994. He and Congress were then able to agree on a compromise that was
enacted into law. The legislation provided that no funds could be used for military operations in Somalia after March 31, 1994, unless authorized by Congress. However, funds could be used after that date to support protection of
American diplomatic facilities and citizens. All troops were to be under U.S.,
rather than United Nations, control. Several days before the March 31 deadline, almost all of the U.S. troops departed from Somalia.
Reflective of the important policymaking role of the American executive
is that in evaluating an executive—whether the president, a governor, or a
mayor—our emphasis is on policymaking rather than administrative accomplishments. Presidents, for their part, are more interested in policy initiation
and adoption rather than administration because policies enable presidents to
build more visible and measurable records of achievement.
dministrative systems throughout the world differ in
A
such characteristics as size, complexity, hierarchic organization, and degree of autonomy from the other branches of
government. Although it was once common doctrine in political science that
administrative agencies only carried into effect, more or less automatically,
policies determined by the “political” branches of government, now it is axiomatic that politics and administration are inseparable, and that administrative
agencies are often significantly involved in the formation of public policies.
This is particularly apparent, given the concept of policy as encompassing
what government actually does over time concerning a problem or situation.
Administration can make or break a law or policy that was made elsewhere.
In the eighteenth century, Catherine II of Russia decreed that a large part of
the institution of serfdom was to be abolished. However, the landowning aristocracy, which really controlled the administration of the government, was
largely able to prevent this decision’s implementation. In the United States,
the effectiveness of state and national pollution-control laws has often been
blunted by heel-dragging and inadequate enforcement by the administering
agencies.
Especially in complex, industrial societies, the technicality and complexity of many policy matters, the need for continuing control of matters, and
legislators’ lack of time and information have caused the delegation of much
discretionary authority, which often includes extensive rule-making power, to
administrative agencies. Consequently, agencies make many decisions and issue many rules that have far-reaching political and policy consequences. Illustrations include the choice of most weapons systems by the Department
of Defense, the development of air-safety regulations by the Federal Aviation Agency, the location of highways by state highway departments, and the
Administrative
Agencies
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The Policy-Makers and Their Environment
regulation of motor vehicles by the National Highway Traffic Safety Administration and the Environmental Protection Agency. Professor Norman C.
Thomas comments, “It is doubtful that any modern industrial society could
manage the daily operation of its public affairs without bureaucratic organizations in which officials play a major policymaking role.”34
Administrative agencies are an important source of legislative proposals
and ideas in the American political system. Because of their experience and
specialized knowledge, agency officials are able to identify needed changes
in existing policies, perhaps to eliminate loopholes, as well as new problems,
that, in their view, are appropriate targets for legislation. Specific proposals to
deal with such matters, including statutory language, may either be conveyed
directly to Congress or channeled through the White House as part of the president’s legislative program.
Agencies also actively lobby and otherwise strive to win acceptance of legislation they favor or kill that which they oppose. 35 Officials frequently testify before congressional committees on legislative and budgetary issues. They
provide requested information to members and help them prepare speeches.
Projects and federal grants-in-aid may be allocated to states and districts with
an eye to building support for the agency. Many agencies have congressional
liaison offices to regularize contacts with Congress. The Department of State,
for example, has an assistant secretary for legislative affairs; the Environmental Protection Agency has an associate administrator for congressional and intergovernmental relations.
There are also myriad informal contracts between the agencies and Congress. Much of this can accurately be called lobbying: “the stimulation and
transmission of a communication, by someone other than a citizen acting on
his own behalf, directed to a governmental decision-maker with the hope of influencing his decision.”36 In years past, the Congress has occasionally become
irritated about administrative lobbying and has adopted legislation banning
it. 37 This ban essentially has been ignored. Extensive administrative-­
congressional communication has become accepted as a legitimate part of the
policymaking process.
owhere do the courts play a greater role in policy forN
mation than in the United States. The courts, notably the
national and state appellate courts, have often greatly affected the nature and
content of public policy by exercising the powers of judicial review and statutory interpretation in cases brought before them.
Judges are sometimes thought to be nonpolitical, merely “following the
law” or previous decisions, but in fact they are often deeply and willingly involved in policy politics (as distinguished from party or partisan politics).
That is, they are judicial activists. Their selection, whether by appointment
or election, typically hinges on their party affiliation and their policy preferences and values. Once in office, values and preferences deeply affect their
decisions.
The Courts
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The Official Policy-Makers
59
Professors Robert Carp and Claude Rowland, in their exhaustive study of federal district judges, found that judges appointed by President Lyndon ­Johnson,
who deliberately appointed civil-rights supporters to the bench, in actuality
were considerably more likely to render pro-civil-rights decisions than were
judges appointed by Presidents Dwight Eisenhower and Richard Nixon.38 That
the Ronald Reagan and George Bush administrations took great care to appoint staunch Republican conservatives to federal judgeships is familiar recent
history.39 The George W. Bush administration followed suit. Both Bill Clinton
and Barack Obama were more inclined to appoint moderates.
Essentially, judicial review is the power of courts to determine the constitutionality of actions by the legislative and executive branches, and to declare
them null and void if they are ruled to be in conflict with the Constitution.
Clearly, the Supreme Court was making policy when, in various cases before
1937, it held that no legislature, state or national, had constitutional authority
to regulate minimum wages. After 1937, the Constitution was found (i.e., interpreted) to permit such legislation. Clearly, too, the Court has helped shape public policy by holding that segregated school systems, official prayers in public
schools, and malapportionment of state legislatures are unconstitutional. The
course of policy is strongly affected by such decisions.
Although the Court has used its power of judicial review somewhat sparingly, the very fact that it has such power may affect the policymaking activities of the other branches. Congress may hesitate to act on a matter if there
is expectation that its action will be found unconstitutional. State supreme
courts also have the power of judicial review but frequently have less discretion in its exercise because most state constitutions are detailed and specific.
The courts are often called upon to interpret and decide the meaning of
statutory provisions that are ambiguously or unclearly stated and open to conflicting interpretations. When a court accepts one interpretation rather than
another, it gives effect to the policy preference of the winning party. In 1984, in
the Grove City case, the meaning or intent of Title IX of the 1972 Education Act
Amendments was at issue.40 This provision prohibited discrimination on the
basis of sex by educational institutions receiving federal aid “for any program
or activity.” Did this ban on discrimination apply to the entire institution being aided, as many members of Congress and civil-rights groups contended?
Or did it apply only to the specific “program or activity” receiving funding, as
the Reagan administration argued? A majority on the Supreme Court took the
latter position, much restricting the effect of the 1972 statute and three other
civil-rights laws with similar provisions.
After this ruling, a legislative campaign was initiated to correct what many
critics thought was an improper interpretation of the 1972 law. It culminated
in the Civil Rights Restoration Act of 1988, enacted into law over President
Reagan’s veto.41 The act overcame the Court’s Grove City decision by clearly
specifying that if one part of an institution received federal funds, then the ban
on sex discrimination applied to the entire institution. This was the view of the
1972 law’s scope that had prevailed prior to the Court’s decision.
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60
2
The Policy-Makers and Their Environment
As clarified, Title IX has produced a vast expansion of women’s athletic
programs in American colleges and universities. This, in turn, has had a similar impact on public school athletic programs.
We turn now to the case of Lilly Ledbetter, who for many years suffered pay
discrimination at the hands of the Goodyear Tire and Rubber Company. Men
doing the same work were paid considerably better. When she finally learned
of this, she sued Goodyear for pay restitution under the Civil Rights Act of
1964. Ledbetter won at the federal district court level only ultimately to lose
before the Supreme Court. The majority ruled that Ledbetter’s case was “untimely,” interpreting the Civil Rights Act to require initiation of action within
180 days of the first discriminatory paycheck.42 The minority argued that this
changed the accepted interpretation of the Civil Rights Act.
Critics of the decision in Congress (mostly Democrats) quickly introduced
legislation to overcome the Goodyear’s decision. Because the 110th Congress
(2007–2008) failed to enact this legislation, it became an issue in the presidential campaign. Barack Obama supported the legislation, which was opposed by
John McCain. When Congress met in January 2009, the Democratic majorities
within the month enacted the Lilly Ledbetter Equal Pay Act, providing that the
statute of limitations applied to each discriminatory paycheck rather than to
the first instance of discrimination. The Act’s supporters said that this restored
the intended meaning of the Civil Rights Act.43
The judiciary has also played a major role in forming economic policy in
the United States. A substantial portion of the law relating to such matters
as property ownership, contracts, corporations, and employer–employee relationships has been developed and applied by the courts in the form of common
law and equity. These are systems of judge-made law fashioned over the years
on a case-to-case basis. They originated in England, but American judges have
adapted them to American needs and conditions. Much of this law was developed by the state courts, and much of it is still applied by them.44
Today the courts are not only becoming more involved in policy formation
but are also playing a more positive role, specifying not only what government
cannot do but also what it must do to meet legal or constitutional requirements. For instance, in Roe v. Wade (1973), the Supreme Court declared unconstitutional a Texas statute prohibiting abortion as a violation of the privacy
protected by the First and Fourteenth Amendments.45 The right to an abortion
was held to be a “fundamental right,” one that could not be readily regulated
or limited by governments. The majority went on to specify the standards future abortion laws would have to meet to comply with the Constitution. During
the first trimester of pregnancy, abortion was left to the decision of a woman
and her physician. During the second trimester, abortion could be regulated to
protect the mother’s health. During the third trimester, however, after the fetus
gained viability, abortion could be prohibited except when necessary to protect
the mother’s life or health. This ruling clearly had a legislative-like quality. It
also touched off a major, continuing political controversy.
In 1989, the Court, which had become more conservative because of three
Reagan appointees, partially overruled Roe v. Wade. In Webster v. Reproductive
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Nongovernmental Participants
61
Health Services, the Court upheld a Missouri state law that prohibited the performance of abortions in public hospitals and clinics and the use of state funds
for counseling women about abortion.46 Also, testing was required before performing an abortion after twenty weeks to determine whether the fetus was
viable outside the womb. This decision, by giving state legislatures more authority to regulate abortions, made the abortion issue even more contentious
and thrust it back into the legislative arena in the fifty states.
The Supreme Court came to grips with abortion again in 1992 in Planned
Parenthood of Southeastern Pennsylvania v. Casey. At issue was state law imposing various restrictions on a woman’s right to end a pregnancy. The five-justice
majority reaffirmed a woman’s right to have an abortion in the early stages
of pregnancy but upheld all provisions of the state law except one requiring
spousal notification. Only two justices, however, continued to view abortion
as a fundamental right.47 The Court’s 1992 decision did nothing to reduce the
intensity of the abortion issue.
In more recent cases, the Court has upheld some state laws requiring a minor to notify parents of a planned abortion unless a judge grants a waiver. The
Court has also upheld some restrictions on the actions of antiabortion protesters, such as congregating, picketing, or demonstrating within thirty-six feet
of the property line of an abortion clinic.48 The judicial struggle over abortion
rights is unlikely to soon abate. Moral issues of this sort are not easy to resolve.
State legislatures, especially in the South, continually contrive and pass laws
in efforts to reduce abortions.49
Several factors guarantee continued judicial involvement in policy formation: the growing influence of government on people’s lives, the failure or refusal of the legislative branches to act on some problems, the dissatisfaction
that often arises when they do act, the willingness of the courts to become involved, and the increasing litigiousness in at least some segments of the population. Americans have become quite adept at converting political issues into
legal issues that the courts are then called on to decide. Judicial activism more
than judicial restraint characterizes the response of the courts.
Although courts in such other Western countries as Canada, Australia, and
Germany have some power of judicial review, they have had less influence on
policy than American courts. In the developing countries, the courts appear to
have no meaningful role. The American practice of settling many important
policy issues through judicial action, including such technical matters as standards for clean air and industrial health and safety, remains unique.
Nongovernmental Participants
The official policy-makers are joined by many other participants in
the policy process, including interest groups, political parties, research organizations, communications media, and individual citizens. They are designated
here as nongovernmental participants because however important or dominant they may be in various situations, they themselves do not usually have
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62
2
The Policy-Makers and Their Environment
legal authority to make binding policy decisions. They provide information,
they exert pressure, they seek to persuade, but they do not decide. That is the
prerogative of official policy-makers.
I nterest groups appear to take an important part in policymaking in practically all countries. Depending upon whether
they are democratic or dictatorial, modern or developing, countries may differ in how groups are constituted and how legitimate they are. Thus, groups
appear to be more numerous and to operate much more openly and freely
in the United States or Great Britain than in Austria or Nigeria. In all systems, however, groups may perform an interest-articulation function; that is,
they express demands and present alternatives for policy action. They may
also supply public officials with much information, often technical, and perhaps not available from other sources, about the nature and possible consequences of policy proposals. In doing so, they contribute to the rationality of
policymaking.
Interest groups representing labor, agriculture, business, education, health,
and other areas of society are a major source of demands for public-policy
action in the United States. Because American society is pluralist, pressure
groups are many and diverse in their interests, organization, size, and modes
of operation. Their numbers have expanded greatly in recent decades. The
Encyclopedia of Associations (a standard source) listed 5,843 associations in
1959; this number had grown to 23,298 by 1995.50 One major growth area has
been health. In 1975, there were 90 health groups, whereas currently there are
around 750. “You name a disease, there’s probably a Washington lobby for it,”
says an official of the American Heart Association.51
The Obama administration’s health-care reform effort brought out organized interests in full force. In 2009, more than 1,750 companies, trade groups,
and other organizations hired some 4,500 lobbyists and spent $1.2 billion to
influence the policy process.52
The explosion in the size of the group system does not mean, however, that
some societal interests are not poorly represented by groups. Poor people, migrant workers, and the homeless are cases in point. They do not fare well in
the group struggle.
Typically, although most groups have a variety of interests, they want to influence policy on specific subjects, such as minimum wages, derivatives trading, or health-care financing. Because groups often have conflicting desires on
policy issues, public officials confront the need to choose from, or reconcile,
conflicting demands. Groups that are well organized, large in size, and skillfully led are likely to fare better than those that are poorly organized, poorly
financed, and low in social status. The group struggle is not a contest among
equals.53
“Single-issue” interest groups have proliferated in recent years. They focus
on one issue or set of related issues such as gun control, milk prices, or legislation on abortion. The National Rifle Association and the National Abortion
Interest Groups
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Nongovernmental Participants
63
and Reproductive Rights Action League are illustrative. The proliferation of
subcommittees in Congress with narrow jurisdictions stimulated the development of such groups and contributed to their importance by permitting concentration of their efforts. Among the single-issue groups that substantially
affected public policy in the past were those advocating abolition of slavery,
suffrage for women, and nationwide prohibition.
Public-interest groups are also important players in the policy process.
Whereas most pressure groups represent interests of direct, material benefit
to their members, public-interest groups usually represent interests that in
their absence would go unrepresented, such as those of consumers, nature lovers, environmentalists, and “good-government” proponents. Frequently, these
interests involve intangible matters such as honesty, beauty, and safety.54 The
members of public-interest groups usually do not benefit selectively and materially from the interests they advocate, and indeed may not benefit at all in
an immediate sense. Members of groups advocating the abolition of the death
penalty do not expect to be in personal jeopardy. Public-interest groups include
the Sierra Club and the National Wildlife Federation, which support environmental protection and wilderness programs; Common Cause, which advocates
more open and accountable government; and the Pacific Legal Foundation
(PLF), which engages in litigation supporting free enterprise and economic
development. Not all public-interest groups are liberal in their policy inclinations, as is sometimes assumed, and as the PLF indicates.
At the national level, many associations of state and local governmental officials routinely seek to influence the content of national policies. Three factors
seem to have been especially significant in generating this “intergovernmental
lobby.”55 One is the increasing professionalism in state and local governments.
The second is growth in federal grants-in-aid to state and local governments,
which amounted to $468 billion in 2012, or approximately 28 percent of state
expenditures. Third are the many regulations and requirements that these and
other federal programs impose on the states and localities and that are open to
modification.
Some of these associations represent elected or appointed officials with executive and legislative duties, such as the National Conference of State Legislators, the U.S. Conference of Mayors, and the National Association of Counties.
Others involve functional specialists in highways, education, recreation, and
other matters, such as the American Association of State Highway and Transportation Officials, the Council of Chief State School Officers, and the National
Association of County Park and Recreation Officials. They gain influence from
their expertness and the support of state and local politicians.
Many individual states, cities, counties, and public universities also have
their own Washington lobbyists or representatives. As with other interest
groups, the intergovernmental lobby is not a monolithic force: its component
groups frequently disagree among themselves. Thus, the highway officials
want more funding for interurban highways, and city officials see a need for
more spending on mass-transit systems.
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64
2
The Policy-Makers and Their Environment
The amount of influence that interest groups have upon decisions depends
on a number of factors, including (subject to the rule of ceteris paribus—other
things being equal) the size of its membership, its monetary and other resources, its cohesiveness, the skill of its leadership, its social status, the presence or absence of competing organizations, the attitudes of public officials,
and the site of decision-making in the political system. (On this last item, recall
the discussion of institutionalism in the chapter “The Study of Public Policy”)
With other things again being equal, a large, well-regarded group (e.g., the
American Legion) will have more influence than a smaller, less well-regarded
group (e.g., Friends of the Earth), and a labor union with a large membership
will have more influence than one with few members. Also, as a consequence
of the factors enumerated here, a group may have strong or controlling influence on decisions in one policy area and little in another. Whereas the National
Association of Manufacturers has much influence on some economic issues, it
has little impact on the area of civil rights.
Much of the work in promoting pressure-group interests in the policy process is performed by group representatives, or lobbyists. Although lobbyist is
the more popular term, group representative seems more descriptive, given the
many and varied activities in which these people engage. Table 2.3, which is
based on a survey of more than 700 group representatives, conveys a notion of
both the array of activities undertaken by group representatives and the relative importance they attribute to the various activities. Once a group makes a
decision to try to influence government on some matter, it is then confronted
with deciding how it can best accomplish that goal. Should emphasis be on
lobbying—directly seeking to inform and persuade officials? Should emphasis
be on providing written information and testimony to officials? How should
the efforts of competing groups be countered? Typically, there is no clear road
to success.
In recent years, groups have made considerable use of “outside lobbying”
techniques, which try to persuade ordinary citizens to serve as their frontline advocates.56 Prominent here are “grass-roots” and “grass-tops” lobbying. Grass-roots lobbying strives to mobilize legislators’ constituents to call,
write, e-mail, and otherwise deluge them with communications. Some groups,
such as the Sierra Club and the NRA, have genuine grass-roots memberships.
In other instances, professional lobbyists may be hired to create grass-roots
movements, or at least their semblance. These mobilization efforts may be
done in conjunction with televised advertising campaigns.
Grass-tops lobbying strives to favorably energize an elite rather than the
masses. People who are likely to be influential with a member of Congress are
identified and then persuaded to convey the preferred message to the member.
These forms of lobbying are important because, except for elections, they are
the means by which “elite policymakers . . . experience pressure in the form of
popular participation. Were it not for outside lobbying from interest groups,
many policy decisions would take place among a relatively insulated group of
Washington insiders.”
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65
Nongovernmental Participants
TABLE 2.3
Importance Rating of Group Representatives’ Tasks
Task description
% reporting task
was of great or
considerable
importance
Government regulations
1. Monitoring changes in rules, regulations, or laws
2. Providing written information to officials
3. Maintaining general relations with officials
4. Maintaining informal, substantive contacts with officials
5. Drafting legislation or rules
6. Alerting client organization about issues
62
52
64
62
27
84
Interest-group networks
7. Mobilizing grass-roots support
8. Maintaining contacts with allies
9. Monitoring interest groups
10. Political fund-raising (PACs)
11. Maintaining contacts with adversaries
12. Resolving conflicts within organization
41
50
29
19
18
23
Public presentation
13. Testifying at official proceedings
14. Preparing official testimony
15. Commenting for press, publications, or speeches
16. Developing policy positions or strategies
27
47
44
83
Litigation
17. Pursuing litigation aimed at changing policy
18. Working on and filing amicus briefs
17
5
Source: From “Lawyers and the Structure of Influence,” by Robert L. Nelson and John P. Heinz with Edward O.
Laumann and Robert H. Salisbury, in Law & Society Review, Vol. 22:2 (1988), pp. 237–300. As found in John P.
Heinz, Edward O. Laumann, Robert L. Nelson and Robert H. Salisbury, The Hollow Core: Private Interests in
National Policymaking (Cambridge, MA: Harvard University Press, 1993), p. 99. Reprinted by permission of
Law and Society Association.
The relatively open and fluid pressure system in the United States is markedly different from the neocorporatist pattern of group relationships in some
Western European countries, such as Austria, Norway, Sweden, and the
­Netherlands, which combine democratic politics with a formally structured
group system.57 In the neocorporate scheme of things, access to policy-makers
is controlled by the government. Policies are adopted after close consultation,
bargaining, and compromise between the government and groups that are the
officially recognized representatives of farmers, labor unions, and employers.
Groups can withdraw from this partnership with the government, but they
may lose influence as a consequence. Some groups, such as those representing consumer and environmental interests, find it difficult to gain access to
the government. Neocorporatism has found little support in the United States.
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66
2
The Policy-Makers and Their Environment
Political Parties
I n the United States, political parties are organizations interested primarily in contesting elections in order to control
the personnel of government. They care more, in short, about power than
about policy. Elections are contested more on the basis of constituency, service, media imagery, and negative attacks on opponents rather than on policy
differences. This situation has often led to the complaint that the ­Republican
and Democratic Parties do not present a meaningful choice for the voters
and consequently, that for public-policy formation, it makes little difference
which party is in office. Although the parties are not highly policy-oriented,
such complaints ignore both the fact that many people do believe that the
parties are different and the substantial impact that the parties do have
on policy. Moreover, since the 1990s, the parties in Congress became more
united, polarized, and policy oriented. This is especially true for the House of
Representatives.
Clearly, the parties appeal to different segments of society. The Democratic
Party draws disproportionately from big-city, labor, minority, and ethnic voters; the Republican Party draws disproportionately from rural, small-town,
and suburban areas, fundamental religious groups, and businesspeople and
professionals. In the South, where for many decades it was the heavily dominant party, the Democratic Party has yielded much ground to the Republican
Party in national elections since the 1960s.
The parties often come into conflict on such issues as welfare programs, labor legislation, business regulation, public housing, taxation, and agricultural
income-support legislation. The reader should not have much difficulty in differentiating between the parties on these issues. Given such policy inclinations
and the fact that party members in Congress often vote in accordance with
party policy positions, which party controls Congress or the presidency has
important policy implications.
In the American state legislatures, political parties vary greatly in importance from one state to another. In some states, it is obvious that parties exercise little discipline over legislative voting, and the party has little, if any, effect
on policymaking, as in the Alabama and Louisiana legislatures. In such states,
factions within the dominant party may be more important. By contrast, in
states such as Connecticut and Michigan, both parties are active and cohesive
and have considerable influence on legislative decision-making. When conflict
over policy occurs in such states, the parties’ function is to provide alternatives. In many cities, an effort has been made to eliminate political-party influence on policy by running nonpartisan elections for city officials. Policy is
supposed to be made “objectively.” An unintended consequence of the policy
of nonpartisanship in city elections is reduced interest and participation in
politics.
In modern societies generally, political parties often perform the function
of interest aggregation; that is, they seek to convert the particular demands of
interest groups into general policy alternatives. The way in which parties
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Nongovernmental Participants
67
“aggregate” interests is affected by the number of parties. In predominantly
two-party systems, such as the United States and Great Britain, the parties’
desire to gain widespread electoral support “will require both parties to include in their policy ‘package’ those demands which have very broad popular
support and to attempt to avoid alienating the most prominent groups.”58 In
multiparty systems, on the other hand, parties may do less aggregating and
act as the representatives of fairly narrow sets of interests, as they appear
to do in Israel, France, and Spain. Generally, parties have a broader range
of policy concerns than do interest groups; hence, they act more as brokers
than as advocates for particular interests in policy formation. In some oneparty systems, such as that of Mexico, they are the predominant force in
policymaking.
rivate research organizations, frequently and inelegantly
P
referred to as “think tanks,” are another set of important
players in policymaking. One researcher reports that there
are 120 private, nonprofit research organizations in the Washington, DC, area
and another 170 scattered among the American states.59 These organizations
are staffed with full-time policy analysts and researchers, some of whom are
ex-government officials, perhaps hoping to return to office once their party
regains power in Washington. They are mostly funded by private foundations, businesses, and rich people. Their studies and reports provide basic
information and data on policy issues, develop alternatives and proposals
for handling problems, and evaluate the effectiveness and consequences of
public policies. Their personnel testify at congressional committee hearings,
communicate informally with public officials, and write articles for the ­op-ed
pages of newspapers. Collectively, they add substance and alternatives to
­policy debates (see Table 2.4).
Research
Organizations
TABLE 2.4
Some Prominent Research Organizations
American Enterprise Institute
Brookings Institution
Cato Institute
Council on Foreign Relations
Economic Policy Institute
Heritage Foundation
Manhattan Institute
Progressive Policy Institute
RAND Corporation
Resources for the Future
Urban Institute
Worldwatch Institute
© Cengage learning
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2
The Policy-Makers and Their Environment
Most of these research organizations have policy biases and distinct ideological leanings. The intent is often to justify policy alternatives. The orientations of the American Enterprise Institute and the Economic Policy Institute,
for example, are widely regarded as conservative and liberal, respectively. The
Brookings Institution and Resources for the Future occupy a middle-of-theroad position. In addition to their policy-analysis activities, these organizations may also engage in policy advocacy.
Research organizations once provided “expert but neutral” information to
policy-makers, which contrasted with the biased or self-interested information developed by pressure groups. In recent years, however, many research
organizations with strong liberal, conservative, or libertarian inclinations have
entered the policy lists as advocates.60 Andrew Rich and Kent Weaver describe
this situation:
Think tanks, especially the more ideologically focused ones, have been active and visible participants in contentious and divisive debates associated
with every contemporary policy issue, from national struggles over welfare
reform to regional squabbles over school finances and performance. In these
policy battles, expertise has frequently been used, and viewed by many participants, more as ammunition for partisan and ideological causes than as
balanced or objective information that can and should be widely acceptable
among policy-makers.61
This “politicization of expertise,” according to Rich and Weaver, has “jeopardized the reputation of think tanks as sources of neutral expertise.”
Many universities have policy or research centers that produce policy studies and evaluations on national, state, and local issues. Several, for instance,
house groups that concentrate on coastal and marine resources. Individual
university researchers also occasionally produce studies of direct value to
policy-makers, sometimes under contract with government agencies, and participate in issue networks comprising many researchers, officials, and others
interested in particular policy areas.
The usefulness of the findings of academic researchers is reduced because
it is often written in technical jargon and published in little-known journals.
Research “brokers,” such as think tanks and congressional staff members, may
be needed to increase the accessibility of scholarly output for policy-makers. 62
One way or another, academic ideas contribute to the rationality of policy.
Communications T he communications media—newspapers, news magazines, network and cable television, radio (including talk
Media
shows), and the Internet—are involved in policymaking as
suppliers and transmitters of information; and as agenda setters in that they
help people decide what to think about and, whether intentionally or otherwise, what to think.63 Although the television networks and newspapers are
still the most used news sources, reliance on them has declined substantially
in the last couple of decades. New media have gained importance, including
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Nongovernmental Participants
69
cable news (CNN, MSNBC, and Fox News), talk radio, and online news. Also,
the proliferation of cell phones and other handheld electronic devices should
be noted. They can be used to transmit political information in addition to personal messages and drivel. This fragmentation of news outlets provides news
consumers with a wide range of choices, including ideological diversity and
disinformation.
Complaints about bias in media coverage and reporting of public affairs
are common, as are contentions that public officials (e.g., in the White House)
are managing or manipulating the news. However valid these charges, they attest to the impact the media are thought to have in politics and policymaking.
A “favorable press” is much sought after.
With good reason, Washington officials are quite sensitive to what is reported by the national media, which means newspapers such as The New
York Times and The Washington Post and the major television networks. A
survey found that more than 70 percent of senior federal officials believed
a positive press increased the likelihood that they would attain their goals
and negative coverage would reduce their chances of doing so. Here the perceived power of the media does not involve changing policy but rather influences the capacity of officials to convert their ideas into policy. However, the
substance of policy may also be affected. 64 Unfavorable coverage of the
­R eagan administration’s attempts to tighten eligibility requirements for
­Social Security disability benefits, for example, contributed to the eventual
abandonment of the effort.
For the most part, the media provide minimal coverage of policy matters.65
The issues receiving coverage are likely to be those judged to have high public
appeal—Social Security reform, some consumer-protection topics, the environment—because they are “interesting” or “relevant.” The politics of policy
rather than the details of policy content receive emphasis. Except for some
specialized media (such as the National Journal, CQ Weekly, and trade journals), policy on such topics as labor, agriculture, housing, financial regulation,
and trade relations do not get much attention. The emergence of cable network venues, talk-show radio, the Internet, and other news media has done
little to remedy this situation. Persons who rely on the general media for their
policy information are likely to be woefully underinformed. As for the impact
of the media on the policy process, beyond helping to set the policy agenda
(see the “Policy Formation” chapter), that is problematical.66
Officials, of course, are not simply acted upon by the media but also strive
to use the press for their own purposes. With interviews, press releases, and
news “leaks,” they seek to use the media to test and influence the attitudes
among both the general public and other officials toward particular proposals or actions. Those who oppose a decision may “leak” premature or adverse
information in an effort to kill it. This tactic was applied in the George Bush
administration to a proposal for securing funds to bail out bankrupt savings
and loan institutions by imposing a tax on all savings and loan depositors.
The proposal was abandoned, and the costs of the bailout, which amounted to
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70
2
The Policy-Makers and Their Environment
around $150 billion, were imposed on taxpayers. Few seemed to care or to be
aware of this.
President Reagan was often referred to as the “great communicator” because of his ability to use radio and television addresses to shape public opinion in support of his purposes. He used this ability to put income-tax reform
on the national agenda and build support for its enactment. Speaker of the
House O’Neill, who was not personally inclined to support tax reform, felt
the pressure generated by the president’s speeches. “I have to have a bill, the
­Democratic party has to have a [tax] bill . . . ,” he was quoted as saying. “If we
don’t we’ll be clobbered over the head by the President of the United States.”67
Used appropriately, the presidency may be a “bully pulpit,” as Theodore Roosevelt once observed.
I n discussions of policymaking, the focus typically is on
legislatures, interest groups, and other prominent players;
little or nothing is said about individual citizens. This bias
is unfortunate, however, because individuals often do seem to make a difference. In various instances, citizens can participate directly in decision-­
making. In most states constitutional amendments are submitted to the voters
for approval, and in many local jurisdictions bond issues and tax increases
require their authorization. In some American states and in some countries
(such as Switzerland), the initiative process enables citizens to vote directly on
legislation.
The initiative is a policy innovation dating from the Progressive Era.
Progressive reformers viewed the initiative, along with the referendum and
recall, as a way of transferring power from politicians to the people. The initiative exists in half of the states and several hundred cities, especially in the
western half of the United States. On the basis of a petition signed by a specified number of voters, a policy proposal is placed on the ballot. If approved
by a majority of those voting on it, it becomes law without any action of
the state legislature or the city council. In 1998, voters approved thirty-six of
sixty-one initiatives on the ballot in several states. The successful initiatives
“ended affirmative action, raised the minimum wage, banned billboards, decriminalized a wide range of hard drugs and permitted thousands of patients
to obtain prescriptions for marijuana, restricted campaign spending and contributions, expanded casino gambling, banned many forms of hunting, prohibited some abortions, and allowed adopted children to obtain the names of
their biological parents” in various states. 68 Two states in 2012 legalized use
of marijuana. The initiative has become a means by which many contentious
social and economic issues are put on the ballot.
In actuality, the initiative process frequently departs from the image of
informed and activated citizens taking charge of policymaking. In many instances, the process is dominated by powerful interest groups. They hire professional organizations to solicit the needed signatures and wage expensive
campaigns for and against the proposals. For example, California Indian tribes
The Individual
Citizen
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Nongovernmental Participants
71
spent $66 million in support of an initiative to expand casino gambling.
­Nevada gambling interests, who saw this as detrimental to their business,
spent $25 million on their losing cause.69 Whether dominated by monied interests or ­reflecting populist action, the initiative produces a policymaking process markedly different from that featured in this book.
Whether because of inertia or indifference, most people do not take these
opportunities to engage directly in shaping public policy. Moreover, many people do not vote, engage in political-party activities, join pressure groups, or
otherwise display much interest in politics. Survey research tells us the voters
are often little influenced by policy issues when voting for candidates for public office. Given the inaction and indifference, however, it still does not hold
that citizens have no influence on policy except in the situation discussed in
the preceding paragraphs. Some other possibilities for citizen impact are reviewed here.
Even in authoritarian regimes, the interests or desires of common citizens
are consequential for public policies.70 The old-style dictator will pay some
attention to what his or her people want just to keep down unrest. A Latin
American dictator is supposed to have said, “You can’t shoot everyone.” Modern authoritarian regimes such as the People’s Republic of China also seem to
respond to citizens’ preferences even as they exclude citizens from more direct
participation in policy formation.
Elections in democratic countries may indirectly reinforce official responsiveness to citizen interests. Professor Charles E. Lindblom summarizes:
The most conspicuous difference between authoritarianism and democratic
regimes is that in democratic regimes citizens choose their top policymakers
in genuine elections. Some political scientists speculate that voting in genuine elections may be an important method of citizen influence on policy not
so much because it actually permits citizens to choose their officials and to
some degree instruct these officials on policy, but because the existence of
genuine elections put[s] a stamp of approval on citizen participation. Indirectly, therefore, the fact of elections enforces on proximate policy makers a
rule that citizens’ wishes count in policy-making.71
The “rule” Lindblom refers to is sometimes expressed in the aphorism that
citizens have a right to be heard and that officials have a duty to listen. The
effect of such considerations on policy-makers is worth thinking about; although public sentiments are not amenable to rigorous measurement in the
present state of political science, they do appear to have an effect on political
behavior.
Some presidential elections in the United States have been classified as
“critical” because they produce major realignments in voter coalitions and
shifts in public policy. The presidential election of 1932 is a prime example.
The Republican and Democratic candidates differed substantially on how
they proposed to deal with the crisis of the Great Depression. The voters gave
Franklin D. Roosevelt and the Democrats an overwhelming victory. The flood
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72
2
The Policy-Makers and Their Environment
of New Deal legislation that followed produced major changes in government–
economy relationships and in government’s role in American society generally.
In such instances, large numbers of newly elected officials, chosen because
of their stand on the critical question, enact legislation consistent with their
party’s stand. Through the electoral process the voters help to produce basic changes in public policy. Other critical elections were those of 1860 and
1896.72
Initially, some observers thought the election of 1980, in which the
­Republican Party elected Reagan and gained control of the Senate, might have
been a critical election, but it turned out not to be. The Democratic gains in
the 1982 congressional elections indicated that no basic realignment in voters’
allegiances had occurred. The Democratic Party remains the majority party
among voters having a party preference. “Landslide” elections are thus not
necessarily critical elections. Following the Republican victories in the 1994
congressional elections, speculation again arose as to whether this marked the
beginning of a realignment.73 In subsequent elections, however, the ­Democrats
regained some of the seats that they had lost. They took control of Congress in 2006 and the Presidency as well in 2008. So much for a Republican
realignment.
Some citizens, through their intellectual and agitational activities, contribute new ideas and directions to the policy process. Thus, Rachel Carson,
with Silent Spring, and Ralph Nader, with Unsafe at Any Speed, considerably
influenced policy on pesticide control and automobile safety, respectively. In
a 1947 article in Foreign Affairs under the byline X, diplomat George Kennan
outlined a proposal for a policy of containment to prevent expansion of the
Soviet Union’s influence and domination. This became the basic United States
approach in dealing with the Soviet Union in the international arena. Only in
the last few years before the collapse of the Soviet Union did the United States
begin to develop new responses to the Soviets. The effect of Kennan’s article
was much greater than he had anticipated.
Others may substantially affect policy action through their political activism. Social Security legislation in the 1930s was certainly affected by the activities of Dr. Francis Townsend, who advocated that every person over sixty
should be paid a monthly pension of $200, and the large following he gathered.
In December 1955, Rosa Parks, a black seamstress, refused to give up her seat
to a white passenger on a crowded segregated city bus in Montgomery, ­Alabama.
She was arrested. Her simple act of defiance touched off the ­Montgomery
bus boycott, which succeeded and helped spur desegregation throughout
the South. In the 1960s, Reverend Martin Luther King, Jr., provided leadership for the civil-rights movement and impetus for civil-rights legislation.
A small group of women whose husbands were killed in the terrorist attack on
the World Trade Center towers was instrumental in causing Congress to create
in 2002 the National Commission on Terrorist Attacks upon the United States.
The commission investigated and reported on intelligence failures preceding
the attacks.
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Levels of Politics
73
Levels of Politics
All the participants in policymaking discussed in this chapter are not
involved in every policymaking or decision-making situation. Some matters
create much attention and attract a wide range of participants. Others are less
visible or affect only a few people and consequently stir little attention and
participation. Professor Emmette S. Redford identifies three levels of policies
based on the scope of participation normally characteristic of each and, to a
lesser extent, the kind of issue involved: micropolitics, subsystem policies, and
macropolitics.74 These merit attention.
Micropolitics involves efforts by individuals, companies, and communities
to secure favorable governmental action for themselves. Subsystem politics focuses on functional areas of activity—such as air-pollution control, coalmine
safety regulation, or river and harbor improvements—and involves relationships among congressional committees, administrative agencies (or bureaus),
and interest groups. Macropolitics occurs when “the community at large and
the leaders of government as a whole are brought into the discussion and determination of [public] policy.”75 The controversies over how to handle airport
security and the reductions in military spending are examples of macropolitics.
icropolitics often occurs when an individual seeks a
M
­favorable ruling from an administrative agency or a ­special
bill offering an exemption from a requirement of the immigration laws, when a
company seeks a favorable change in the tax code or a television broadcasting
license, or when a community seeks a grant for the construction of an airport
or opposes the location of a public-housing project in its area. In each of these
instances one finds the specific, differentiated, and intense interest of one or
a few in a society of many individuals, companies, and communities. They
require or seek a decision applicable to one or a few. Typically, only a few persons and officials are involved in or even aware of such decision-making situations, however important they may be for those seeking action, and ­whatever
the ultimate consequences of such decisions or a cluster of them may be.
In the short run at least, micropolitical decisions appear to be distributive
and can be made without considering limited resources. That is, such decisions appear to affect only those immediately interested and are usually made
on the basis of mutual noninterference, each claimant seeking its own benefits
(or subsidies) and not opposing or interfering with others’ efforts to do likewise. Benefits received by one individual or group do not appear to be won at
the expense of other individuals or groups.
Micropolitics is exemplified by the congressional enactment of private legislation.76 Almost every year Congress enacts several bills into law that apply
only to a person, company, or governmental unit specifically designated in the
law. A private law may exempt someone from a provision of the Immigration
and Nationality Act, or provide for the payment of a monetary claim against the
government, as when a government agency has caused damage to someone’s
Micropolitics
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74
2
The Policy-Makers and Their Environment
property. Such legislation arouses little attention on its way through the legislative process and becomes law with the public unaware of its existence. Each
party in the House does have a three-member “objector committee” whose
task is to screen private bills for controversial provisions. For whatever reason,
many more private bills are introduced during a session than become law.
As governmental programs become more numerous and complex, and as
they make more benefits available for, or impose more requirements or restrictions on, individuals, groups, companies, and communities, both the opportunity and the incentive to engage in micropolitics increase. As this happens,
the likelihood of favoritism and unequal treatment for persons and groups
increases. Those who have more political resources (e.g., information, influential contacts, and money) are more likely to become the beneficiaries of micropolitics, whatever the justness or soundness of their cause. We now consider
them in more detail.
Subsystem
Politics
In a frequently quoted passage, political analyst Ernest S.
Griffith, in 1939, called attention to the existence of political subsystems and the value of studying them:
One cannot live in Washington for long without being conscious that it has
whirlpools or centers of activity focusing on particular problems. ... It is
my opinion that ordinarily the relationship among these men—legislators,
administrators, lobbyists, scholars—who are interested in a common problem is a much more real relationship than the relationship between congressmen generally or between administrators generally. In other words, he
who would understand the prevailing pattern of our present governmental
behavior, instead of studying the formal institutions or even generalizations
in the relationships between these institutions or organs, important though
all these things are, may possibly obtain a better picture of the way things
really happen if he would study these “whirlpools” of special social interests
and problems.77
In the decades since Griffith made that statement, political scientists and
­others have devoted much attention to examining political subsystems (also
variously called subgovernments, policy clusters, and policy coalitions).
For many years, subsystems were usually designated as iron triangles (or
cozy little triangles, or triple alliances). An iron triangle ideally involves a pattern of symbiotic relationships among some congressional committees (or subcommittees), an administrative agency or two, and the relevant interest groups
centered on a policy area (Figure 2.1).78 All have a direct, material interest in
the policy matters being treated. A classic iron triangle was focused on rivers
and harbors development activity. It comprised the Army Corps of Engineers
(who still handle many civilian water projects), the congressional committees
with jurisdiction over public works, and the National Rivers and Harbors Congress, an interest group.79 This triangle, which was resistant to wider participation, dominated policymaking on water projects. As with other triangles, the
participants preferred policy to be made cooperatively and quietly.
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75
Levels of Politics
Figure 2.1
A Possible Iron Triangle
Policy
Matter
(i.e., Vocational
Education)
Congressional
Committees or
Subcommittees
Interest
Groups
© Cengage learning
Agency
The national government was often alleged to be (and sometimes continues
to be) heavily populated with iron triangles.80 Although these arrangements
provided participants with continuing access and influence on the content of
policy, those who were excluded—policy experts (often within the academic
community), groups adversely affected by their policies, and others—were very
critical of them. Iron triangles were charged with contributing to governmental
fragmentation, causing lack of policy coordination, and acting contrary to the
public interest. Moreover, the governmental agencies involved were frequently
alleged to have been captured by the dominant groups; the Civil Aeronautics
Board (now defunct) and the Interstate Commerce Commission (also defunct)
were called captives of the commercial airlines and railroads, respectively. The
Office of the Comptroller of the Currency currently seems unduly responsive
to the interests of the banking industry. Although frequently bandied about,
the notion of capture has not been well explained. Usually it appears to mean
that, for whatever reasons, an agency has become—the person alleging capture
believes—too responsive to the interests of an industry or its clientele.
The iron-triangle concept came under attack several years ago by political
scientist Hugh Heclo, who contended that it was “not so much wrong as it was
disastrously incomplete.” The concept, he said, “suggests a stable set of participants coalesced to control fairly narrow public programs which are in the
direct economic interest of each party to the alliances.”81 Heclo’s view was that
other, larger sorts of arrangements also exist, which he referred to as “issue
networks.” He went on to explain that an issue network includes many participants who constantly move into and out of the network, including public officials, interest-group representatives, political activists, and technical or policy
experts from universities, research organizations, and elsewhere. Within these
somewhat cloudlike or amorphous configurations, no one seems to be in control of the policies and issues.
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76
2
The Policy-Makers and Their Environment
What, then, does an issue network look like? Let Professor Heclo answer:
It is difficult to say, precisely, for at any given time only one part of a network may be active, and through time the various connections may intensify
or fade among the policy intermediaries and the executive and ­congressional
bureaucracies. For example, there is no single health policy network but
various sets of people knowledgeable and concerned about cost control
mechanisms, insurance techniques, nutritional programs, pre-paid plans,
and so on. At any one time these experts in designing a nationwide
­insurance system may seem to be operating in relative isolation, until it
­becomes clear that previous efforts to control costs have already created
precedents that have to be accommodated in any new system, or that the
­issue of federal funding for abortions has laid land mines in the path of
any workable plan.82
Many of those involved in a network will not have direct material interests
at stake; rather, their ideas and beliefs about proper public policy will be the
basis for their participation.
Political scientists have enthusiastically embraced the concept of issue
networks despite a dearth of empirical data on the actual presence and operation of networks. The political science literature is replete with references
to networks and to how they have replaced iron triangles in the policy process. In reality, some iron triangles probably survive, especially in distributive
policy.83
There is no need to assume that only one kind of subsystem can exist at a
time. (That was not Heclo’s position.) Why not rather assume that subsystems
take various forms that can be arrayed along a continuum? At one pole, we
could put classic iron triangles, with their limited participation, resistance to
external influences, and preoccupation with material interests. At the other
pole, we could put the issue network with its amorphousness, wide and changing participation, issue experts, and ambiguity about who is in control. Other
forms of subsystems could be appropriately arrayed between the poles.84
What I call a policy community is broader and more open in participation
than an iron triangle but less amorphous and more under identifiable control
than an issue network. Thus, the antitrust community includes the Antitrust
Division of the Department of Justice and the Federal Trade Commission, the
House and Senate Judiciary Committees (or their antitrust subcommittees),
the relevant appropriations subcommittees, writers of books and journal articles on antitrust, the private antitrust bar, and the federal courts that rule
on antitrust cases. State attorneys general have become members in recent
years. This community has much influence on the nature and implementation of antitrust policy as long as important new legislation is not involved.
Significant changes in antitrust policy were achieved through variations in the
interpretation and enforcement of laws by executive and judicial members of
the antitrust community in the 1980s. The Reagan administration’s attempt
to have these changes enacted into statutory law failed, however. Clinton
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Levels of Politics
77
administration’s antitrust officials soon acted administratively to reverse some
of the Reagan and George Bush administrations’ antitrust practices.
Within a subsystem, especially if it is large and complex, advocacy coalitions may develop.85 An advocacy coalition is a set of people within a subsystem who share basic values, perceptions of problems, and policy preferences,
and who cooperate to advance attainment of their policy goals and interests.
Often there are two or more advocacy coalitions in a subsystem. The policy
area of air-pollution control provides an illustration.
The air-pollution control subsystem is complex, comprising the Environmental Protection Agency (EPA), various congressional committees, other
agencies with overlapping jurisdictions, polluting companies, state and local pollution-control agencies, makers of pollution-control equipment, many
health and environmental groups, other countries (as on acid rain), and more.
Two advocacy coalitions are identifiable in this subsystem: the clean-air and
the economic-feasibility coalitions.
The clean-air coalition consists of EPA air-pollution officials, environmental and health groups, some labor unions, some state and local air-pollution
control officials, some researchers, and some members of Congress. This coalition asserts the primacy of health over economic development, contends that
the market cannot adequately deal with pollution problems, and favors a traditional regulatory approach to pollution control.
The economic-feasibility coalition includes industrial sources of air pollution, energy companies, their allies in Congress, a few labor unions, some state
and local pollution-control officials, and a number of economists. The
­economic-feasibility coalition stresses the need to balance health and ­economic
development and efficiency, doubts that the health problems are as serious as
some contend, and favors more deference to market arrangements and the use
of economic incentives to reduce pollution.
Inside the air-pollution control subsystem, rule-making and implementation actions will be shaped by the interaction of these advocacy coalitions and
will rest ultimately upon the EPA’s legal authority. What advocacy coalitions
obviously desire is to help shape the exercise of discretionary authority of the
agency or agencies that are the focal point of their subsystem. The adoption of
major air-pollution control legislation, such as the Clean Air Act Amendments
of 1990, however, will take place in the macropolitical arena. Rulemaking by
the EPA may also become the focus of macropolitical struggle, as in the instance of the arsenic rule for drinking water.
Whatever their form or style, subsystems are influential in policy development and implementation in the American political system.86 Perhaps issue
networks are more important in new or unsettled areas of public policy, such
as the disposal of hazardous waste, computer network communications, and
the control of terrorism. Policy communities or iron triangles are likely to be
more common in stable areas of policy such as shipping regulation, vocational
education, and veterans’ benefits. There has been a tendency for subsystems to
become broader in scope. Thus, the iron triangle once centered on rivers and
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78
2
The Policy-Makers and Their Environment
harbor projects gave way to a wider policy community as many environmental
groups became interested in this policy area. As a consequence, political life
was made more complex for the Army Corps of Engineers, which has become
more amenable to environmental interests.
Subsystems, of course, are part of the larger (macro) political system. As
such, they are subject to intervention and control by the president, Congress,
and other non-subsystem actors. Some resources that subsystems need can
come only from the larger political system—namely, legislation, appropriations, and political-level appointments. Those who are aggrieved by subsystem action may carry appeals for redress to the larger system. Consequently,
subsystem autonomy is a conditional phenomenon. It may last only so long
as subsystem actions are routine, accepted, and within the bounds of existing
legislative authority. Even then, an external event, such as a change in presidential administrations or congressional majorities, may focus unwanted attention on some subsystems. The boundary lines between a subsystem and
the macropolitical system are not distinct and, in practice, they are difficult to
specify.
ome policy issues attract enough attention or become suffiS
ciently controversial to be ripe for action in the macropolitical
areas. Some issues are “born” to be macropolitical, such as escalation of the
war in Vietnam, the Clinton administration’s health-care reform proposal,
George W. Bush’s successful call for a trillion-dollar tax cut, and the financial crisis of 2007–2009. Because of their consequences for large numbers of
people and the controversy enveloping them, they attracted wide interest and
participation from rank-and-file citizens and political elites alike.
Many other issues may be moved from the subsystem to the macropolitical level by the action of public officials or other interested parties, perhaps
because of dissatisfaction with subsystem actions. Moreover, policy proposals
developed within subsystems often require approval by the larger political system. Then, because of their importance or magnitude, they draw extensive interest and participation. So it went with the Job Partnership Training Act and
the legislation strengthening the Fair Housing Act. In other instances, however, bills emerging from subsystems may move through Congress with little
attention or deliberation.
Macropolitics
CASE
STUDY
The Endangered Snail Darter
Some matters may begin political life at the micropolitical level
and then escalate into macropolitical issues because of their
symbolic, scandalous, or substantive characteristics. Consider the classic
case of the snail darter (a species of minnow), which was accorded protection under the Endangered Species Act (ESA) of 1973. Its designation as
endangered by the U.S. Fish and Wildlife Service was initially a routine
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Levels of Politics
79
i­ nstance of policy implementation. What followed was not, as this summary
reveals:
The discovery of the snail darter in the Little Tennessee River in eastern
Tennessee in August 1973, its subsequent listing as endangered in October
1975, and the designation of its critical habitat in April 1976 led to a major
conflict with the Tennessee Valley Authority’s [TVA’s] Tellico project, a multipurpose water resource development project that was to provide economic
development, hydroelectric, flood control, and recreation benefits. The conflict turned into litigation that went as high as the Supreme Court, resulting
in front[-]page headlines across the nation in mid-1978. The Supreme Court
ruling that the ESA prohibited completion of the project led to amendments
to the act that established an interagency panel to review projects for possible exemptions from the act’s provisions. [A group of high-level officials,
it became known as the “god squad” because it could determine the fate of
species.] In January 1979, the panel ruled that the Tellico project should not
be exempted because the project was “ill-conceived and uneconomic . . .”
However, by attaching a rider onto an omnibus public works appropriation
bill, Tennessee congressmen were able to sneak through a provision that directed the TVA to complete the project. Citing political problems and the difficulty of vetoing a bill that would fund numerous other projects, President
Carter signed the bill “with regret” in September 1979.87
Thus did the little snail darter and the ESA become the focus of a macropolitical struggle. It was later discovered that there were other colonies of
snail darters. The Tellico Dam was completed, but many of the benefits promised by its proponents, including TVA, were never realized.88
Several other listings, or possible listings, or species as endangered have
also precipitated macropolitical conflicts. These include the spotted owl in the
Pacific Northwest and salmon in the Columbia River system. The polar bear,
as global warming modifies its icy habitat, could become a macropolitical
focus. Mostly, however, political conflicts over endangered species have been
waged within the boundaries of a policy subsystem.89 ■
The central participants in macropolitics include the president, party and
congressional leaders (who often overlap), and the executive departments.
The communications media, who can drum up public attention on an issue,
and various group leaders usually are also deeply involved. This level of politics attracts most attention in studies of policymaking because it is often quite
visible and salient as well as sharply conflictual and sometimes sensational.
Decisions made in the macropolitical arena may differ considerably from
what they would have been if made at one of the other levels. Among other
things, when an issue moves, say, from the subsystem to the macropolitical
arena, the conflict is expanded in scope. More players take part, and, as E. E.
Schattschneider suggests, expanding the conflict often changes the substance
of the settlement, that is, the policy decision.90 Broad public interests are likely
to receive fullest consideration at the macropolitical level.
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80
2
The Policy-Makers and Their Environment
A distinctive characteristic of macropolitics is presidential involvement,
which draws the attention of many policy participants. Whether the president
more adequately represents national interests than does the Congress, as some
contend, is open to debate. What is certainly true, however, is that those interests that are represented by the president enjoy an advantage in the macropolitical arena. Because of the centrality and visibility of the office, the capacity
to formulate policy alternatives, and the resources that can be drawn upon in
support of his or her proposals, the president can be the policy leader here if
he or she so chooses.
Presidential actions can substantially affect the content and direction of
public policies. This is illustrated by the case of the “global gag rule,” which
prohibited provision of federal money to international organizations that advocated or provided abortion services. An executive order, it was put in place
by President Ronald Reagan and continued by President George Bush. It was
quickly repealed by President Bill Clinton and just as quickly reinstated by
President George W. Bush. President Barack Obama revoked the order during
his first week in office.
In the chapter titled “Policy Formation: Problems, Agendas, and Formulation,” we look at the emergence and definition of public problems, agenda
setting, and the formulation of policy proposals, especially as they occur in the
macropolitical arena.
For Further
Exploration
❚ http://www.house.gov/
The homepage of the U.S. House of Representatives provides
­information regarding individual representatives, committee hearing
schedules, the current House calendar, and roll-call votes on legislation
since 1990.
❚ http://www.nga.org/
The National Governors’ Association official homepage contains information on key policy issues currently affecting the various states.
❚ http://www.senate.gov/
This is the homepage of the U.S. Senate. Information regarding
­individual senators, recent legislative activity, appropriations bills, committee hearing schedules, and Senate history is provided.
❚ http://www.state.gov/
The U.S. State Department’s website contains a link regarding current
and salient foreign-policy issues and provides audio recordings of press
briefings that were issued over the course of several years.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Suggested Readings
81
Test Your
Knowledge
Log on to the student companion website at
login.cengage.com
to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary
flashcards that review chapter concepts and terminology.
Suggested
Readings
Allen J. Cigler and Burdett A. Loomis, eds., Interest Group Politics, 8th ed.
(Washington, DC: CQ Press, 2011). A strong collection of essays that provides much information and insight into the role of groups in American
politics.
Anthony Nownes, Total Lobbying (New York: Cambridge University Press,
2006). This is a comprehensive overview of lobbying and its impact on the
policy process.
Garry Wills, A Necessary Evil: A History of American Distrust of Government
(New York: Simon & Schuster, 1999). Distrust of government, which is a
basic feature of American political culture, gets comparative, historical
examination in this solid volume.
George C. Edwards III, Overreach: Leadership in the Obama Presidency
(­Princeton, NJ: Princeton University Press, 2012). This is a challenging
and thorough examination of policymaking during the first two years of
the Obama administration.
J. Leiper Freeman, The Political Process, 2nd ed. (New York: Random House,
1965). This small volume is the seminal work on political subsystems.
Kenneth M. Murchison, The Snail Darter Case. (Lawrence, KS: University
Press of Kansas, 2007). A thorough and readable analysis of the Snail
Darter case and its meaning for American environmental law.
Louis Fisher, Constitutional Conflicts Between Congress and the President,
5th ed. (Lawrence, KS: University Press of Kansas, 2007). Fisher, a ­leading
student of American government, offers the reader much information
about the national policy process in his examination of constitutional
conflicts.
Robert M. Emtman, Projection of Power (Chicago, IL: University of Chicago
Press, 2004). A good analysis of the impact the communications media
has on American politics and policy.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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82
2
The Policy-Makers and Their Environment
Notes
1. Charles O. Jones, The Presidency in a Separated System (Washington, DC:
­Brookings Institution, 1994), p. 16. His emphasis.
2. David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–1990 ( New Haven: Yale University Press, 1991).
3. George C. Edwards III, Andrew Barrett, and Jeffrey Peake, “The Legislative Impact
of Divided Government,” American Journal of Political Science, Vol. 41 (April 1997),
pp. 545–563.
4. United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, reported
in The New York Times, May 16, 2000, pp. 1, A14.
5. Ann O. M. Bowman and Richard C. Kearney, The Resurgence of the States
(Englewood Cliffs, NJ: Prentice-Hall, 1986), pp. 10–22.
6. Clyde Kluckhohn, Mirror for Man (Greenwich, CT: Fawcett, 1963), p. 24.
7. For an extended discussion of political culture, see Gabriel A. Almond and Sidney
Verba, The Civic Culture (Boston, MA: Little Brown, 1965); and Donald J. Devine,
The Political Culture of the United States (Boston, MA: Little Brown, 1972).
8. The quotation is from Joseph S. Nye and Philip Zelikow, eds., Why People Don’t
Trust Government (Cambridge, MA: Harvard University Press, 1997), pp. 88–89.
9. Paul Starr, Remedy and Reaction (New Haven, CT: Yale University Press, 2011), p. 8.
10. Daniel J. Elazar, American Federalism: A View from the States (New York: Harper &
Row, 1984), Chap. 4.
11. Robin M. Williams Jr., American Society, 3rd ed. (New York: Knopf, 1974),
Chap. 11.
12. Steven Kelman, Regulating America, Regulating Sweden (Cambridge, MA: MIT
Press, 1981), Chaps. 5, 6.
13. Devine, op. cit., pp. 210–211.
14. Karl W. Deutsch, Politics and Government (Boston, MA: Houghton Mifflin, 1970),
p. 207.
15. Almond and Verba, op. cit., pp. 11–26.
16. Deutsch, op. cit., p. 207.
17. Cf. E. E. Schattschneider, The Semi-Sovereign People (New York: Holt, Rinehart
and Winston, 1960), Chap. 1.
18. Thomas R. Dye, Politics, Economics, and the Public Policy Outcomes in the Fifty
States (Chicago, IL: Rand-McNally, 1966). Dye uses the term policy outcome to
designate what was described as policy outputs in the chapter titled “The Study of
Public Policy.”
19. Ibid., p. 293. See also Thomas R. Dye, Understanding Public Policy, 10th ed. (Upper
Saddle, NJ: Prentice-Hall, 2002), Chap. 12; and Michael Lewis-Beck, “The Relative
Importance of Socio-economic and Political Variables in Public Policy,” American
Political Science Review, Vol. 62 (June 1977), pp. 559–566.
20. Ira Sharkansky and Richard I. Hofferbert, “Dimensions of State Policy,” in Herbert
Jacob and Kenneth N. Vines, ed., Politics in the American States, 2nd ed. (Boston,
MA: Little Brown, 1972), esp. pp. 318–323.
21. Ibid., p. 320.
22. They are, in effect, defined away in Robert S. Erikson, Gerald C. Wright, and John P.
McIver, Statehouse Democracy: Public Opinion and Policy in the American States
(New York: Cambridge University Press, 1993), pp. 8–10.
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Notes
83
23. Peter Andreas, Smuggler Nation (New York: Oxford University Press, 2013),
Chap. 14.
24. Congressional Quarterly Weekly Report, Vol. 60 (January 26, 2002), p. 243.
25. Wall Street Journal, February 22, 2002, p. B3; The New York Times, February 22,
2002, p. A18. See Robert L. Paarlberg, The Politics of Precaution (Baltimore, MD:
Johns Hopkins University Press, 2001).
26. Leroy N. Rieselbach, Congressional Politics: The Evolving Legislative System, 2nd ed.
(Boulder, CO: Westview, 1995), p. 13.
27. Walter A. Rosenbaum, Energy, Politics, and Public Policy, 2nd ed. (Washington, DC:
CQ Press, 1987), p. 51.
28. Center on Policy Attitudes, The Polling Report, February 15, 1999.
29. George C. Edwards III, Overreach: Leadership in the Obama Administration
­(Princeton, NJ: Princeton University Press, 2012).
30. Norman J. Ornstein, Thomas E. Mann, and Michael J. Malbin, Vital Statistics on
Congress, 1993–1994 (Washington, DC: Congressional Quarterly, 1994),
pp. 195–196.
31. William M. Lunch, The Nationalization of American Politics (Berkeley, CA: University
of California Press, 1987), pp. 122–123. See also John Hart, The Presidential Branch,
2nd ed. (Chatham, NJ: Chatham Press, 1995).
32. Richard J. Harknett and Norman C. Thomas, “The Precedence of Power: Determining Who Should Authorize Military Force,” Presidential Studies Quarterly,
Vol. 25 (Spring 1998), pp. 1–21.
33. This discussion draws on ibid., pp. 153–154; and Congressional Quarterly Weekly
Report, Vol. 51 (October 16, 1993), pp. 2823–2827.
34. Norman C. Thomas, Rule 9: Politics, Administration, and Civil Rights (New York:
Random House, 1966), p. 6.
35. Rieselbach, op. cit., pp. 212–214.
36. Lester W. Milbrath, The Washington Lobbyists (Chicago: Rand-McNally, 1963), p. 8.
37. Abraham Holtzman, Legislative Liaison: Executive Leadership in Congress (Chicago,
IL: Rand-McNally, 1970), Chap. 3.
38. Robert A. Carp and Claude K. Rowland, Policy-Making and Politics in the Federal
District Courts (Knoxville, TN: University of Tennessee Press, 1983).
39. See, for example, Ronald Stidham and Robert A. Carp, “Judges, Presidents, and
Policy Choices: Exploring the Linkage,” Social Science Quarterly, Vol. 68 (June
1987), pp. 395–404.
40. Grove City College v. Bell, 465 U.S. 555 (1984).
41. Congressional Quarterly Weekly Report, Vol. 46 (January 23, 1988), pp. 160–163;
Vol. 46 (March 26, 1988), pp. 774–776.
42. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 2007.
43. CQ Weekly Report, Vol. 67 (January 12, 2009), p. 83 and Vol. 67 (February 2, 2009),
p. 259.
44. Emmette S. Redford, American Government and the Economy (New York:
­Macmillan, 1965), pp. 53–54.
45. Roe v. Wade, 410 U.S. 113 (1973). Also Griswold v. Connecticut, 381 U.S. 479
(1958).
46. Webster v. Health Reproductive Services, 492 U.S. 490 (1989). Also The New York
Times, July 4, 1989, pp. A1, A8–A12.
47. Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 931 (1992).
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84
2
The Policy-Makers and Their Environment
48. Madson v. Women’s Health Center, 114 S. Ct. 2516 (1994). See generally, Ruth Ann
Strickland, “Abortion: Prochoice v. Prolife,” in Raymond Tatalovich and Byron W.
Daynes, Moral Controversies in American Politics (Armonk, NY: M.E. Sharpe,
1998), Chap. 1.
49. The New York Times, March 30, 2013, pp. A18, A19, April 4, 2013, p. A13; and
June 18, 2013, pp. 1, 3.
50. Frank R. Baumgartner and Beth L. Leech, Basic Interests (Princeton, NJ: Princeton
University Press, 1998), p. 103.
51. Quoted in Roger H. Davidson and Walter J. Oleszek, Congress and Its Members,
8th ed. (Washington, DC: CQ Press, 2002), p. 350.
52. Edwards, op. cit., p. 155.
53. See, generally, John P. Heinz, Edward O. Laumann, Robert L. Nelson, and Robert H.
Salisbury, The Hollow Core: Private Interests in National Policy Making
(Cambridge, MA: Harvard University Press, 1993).
54. This discussion is based on Kay Lehman Scholzman and John T. Tierney Organized
Interests and American Democracy (New York: Harper & Row, 1986), pp. 28–35.
55. Thomas J. Anton, American Federalism and Public Policy (New York: Random
House, 1989), pp. 94–95; Scholzman and Tierney, op. cit., pp. 55–57.
56. Ken Kollman, Outside Lobbying: Public Opinion and Interest Group Strategies
(Princeton, NJ: Princeton University Press, 1998). The quotation is on p. 8. See
also Alison Mitchell, “A New Form of Lobbying Puts Public Face on Private Interest,” The New York Times, September 30, 1998, pp. A1, A14.
57. Graham K. Wilson, Business and Politics: A Comparative Introduction, 3rd ed.
(Chatham, NJ: Chatham House, 2003), Chap. 6.
58. Gabriel A. Almond and G. Bingham Powell Jr., Comparative Politics: A Developmental Approach (Boston, MA: Little Brown, 1966), p. 103.
59. Andrew Rich, “Think Tanks and the Politics of Expertise in the States,” paper presented at the Conference on the Study of Politics in the American States, Texas
A&M University, College Station, TX, March 2–3, 2001.
60. Louis Jacobson, “Tanks on the Roll,” National Journal, Vol. 27 (July 8, 1995),
pp. 1767–1771.
61. Andrew Rich and R. Kent Weaver, “Think Tanks and the Politicization of Expertise,” in Allan J. Cigler and Burdett A. Loomis, eds., Interest Group Politics, 5th ed.
(Washington, DC: CQ Press, 1996), p. 237.
62. David M. Ricci, The Transformation of American Politics (New Haven, CT: Yale University Press, 1993), p. 163.
63. Timothy E. Cook, Governing with the News (Chicago: University of Chicago Press,
1998).
64. Martin Linsky Impact: How the Press Affects Federal Policy-Making (New York: Norton, 1986), pp. 114–115.
65. But see Cary Coglianese and Margaret Howard, “Getting the Message Out: Regulatory Policy and the Press,” Press/Politics, Vol. 3 (Summer 1998), pp. 39–55.
66. Cf. Richard Davis and Diana Owen, New Media and American Politics (New York:
Oxford University Press, 1998), Chaps. 3, 10.
67. Steven B. Roberts, “A Most Important Man on Capitol Hill,” The New York Times
Magazine, September 22, 1984, p. 48.
68. David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money
(New York: Harcourt, 2000), pp. 4–5.
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Notes
85
69. Ibid., p. 164.
70. This discussion draws on Charles E. Lindblom, The Policy-Making Process
(Englewood Cliffs, NJ: Prentice-Hall, 1968), p. 44.
71. Ibid., p. 45.
72. For further discussion, see James R. Sundquist, Dynamics of the Party System:
Alignment and Realignment of Party Systems in the United States (Washington, DC:
Brookings Institution, 1972); David W. Brady, “Critical Elections, Congressional
Parties and Clusters of Policy Changes,” British Journal of Political Science, VIII
(January 1978), pp. 79–99; and Warren E. Miller and J. Merrill Shanks, “Policy Directions and Presidential Leadership: Alternative Interpretations of the 1980 Presidential Election,” British Journal of Political Science, XII (July 1982), pp. 299–358.
For a dissenting view, see David R. Mayhew, Electoral Realignment: A Critique of an
American Genre (New Haven, CT: Yale University Press, 2002).
73. Walter Dean Burkham, “Realignment Lives: The 1994 Earthquake and Its Implications,” in Colin Campbell and Burt A. Rockman, eds., The Clinton Presidency: First
Appraisals (Chatham, NJ: Chatham House, 1995), Chap. 12.
74. Emmette S. Redford, Democracy in the Administrative State (New York: Oxford
University Press, 1969), p. 107.
75. Ibid., p. 53.
76. Walter J. Oleszek, Congressional Procedure and the Policy Process, 3rd ed.
(Washington, DC: CQ Press, 1989), pp. 117–118.
77. Ernest S. Griffith, The Impasse of Democracy (New York: Harrison-Hilton Books,
1938), p. 182.
78. The subsystem concept is discussed in J. Leiper Freeman, The Political Process,
rev. ed. (New York: Random House, 1965). See also Jeffrey M. Berry, The Interest
Group Society, 2nd ed. (Chicago: Scott, Foresman, 1989), Chap. 8.
79. Arthur Maass, Muddy Waters (Cambridge, MA: Harvard University Press, 1951).
80. Many introductory American government textbooks contain discussions of iron
triangles. Examples include Karen O’Connon and Larry J. Sabato, American Government: Continuity and Change (New York: Longman, 2004), pp. 332–334; John R.
Bond and Kevin B. Smith, The Promise and Performance of American Democracy
(Boston, MA: Wadsworth, 2012), pp. 528–529; and James A. Morone and Rogan
Kersh, By the People (New York: Oxford University Press, 2013), p. 429.
81. Hugh Heclo, “Issue Networks and the Executive Establishment,” in Anthony King,
ed., The New American Political System (Washington, DC: American Enterprise
Institute, 1978), pp. 87–124.
82. Ibid., p. 104.
83. Randall B. Ripley and Grace A. Franklin, Congress, the Bureaucracy, and Public
Policy, 6th ed. (Pacific Grove, CA: Brooks/Cole, 1991), Chap. 6.
84. For a similar suggestion, independently arrived at, see John Creighton Campbell
with Mark A. Baskin, Frank R. Baumgartner, and Nina P. Halpern, “Afterword on
Policy Communities: A Framework for Comparative Research,” Governance: An
International Journal of Policy and Administration, II (January 1989), pp. 86–94.
85. This discussion relies on Paul A. Sabatier, “Policy Change over a Decade or More,”
in Paul A. Sabatier and Hank Jenkins-Smith, eds., Policy Change and Learning: The
Advocacy Coalition Approach (Boulder, CO: Westview, 1993), Chap. 2.
86. Cf. Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American
Politics (Chicago, IL: University of Chicago Press, 1993), Chaps. 2, 3.
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86
2
The Policy-Makers and Their Environment
87. Steven Lewis Yaffee, Prohibitive Policy: Implementing the Federal Endangered Species Act (Cambridge, MA: MIT Press, 1982), p. 165.
88. Kenneth M. Murchison, The Snail Darter Case (Lawrence: University Press of
Kansas, 2007), Chaps. 4, 7.
89. An example is the pygmy owl discussed in Christopher McGrory Klyza and David
Sousa, American Environmental Policy, 1990–2006 (Cambridge, MA: MIT Press,
2008), pp. 163–168.
90. Schattschneider, op. cit., Chap. 4.
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3
Policy Formation:
Problems, Agendas,
and Formulation
U
ntil the New Deal years, government paperwork (forms, reports,
­information requests) was not perceived as a public problem. Up to that
time the national government had only limited direct contact with ­citizens.
The great expansion of governmental programs in the 1930s, however,
“­dramatically increased the need for data and unleashed a wave of forms and
surveys upon the land.”1 World War II programs generated more needs for information, and complaints about the burdens imposed on citizens and companies became more frequent. Paperwork now came to be perceived as a public
problem by some people.
Congress responded to this new problem with the Federal Reports Act,
which authorized agencies to collect from citizens information that was necessary for agency operations unless other agencies were already gathering the
information. The law rested on the assumption that agency officials could
properly decide what information they needed and that any burdens imposed
upon citizens were an acceptable inconvenience.2
The Federal Reports Act did not improve the popularity of paperwork, however. Complaints and criticisms continued and grew in volume as ­paperwork
requirements escalated in the 1960s and early 1970s with the proliferation
of national social welfare and economic regulatory programs. Soon after he
became president in August 1974, Gerald Ford put regulatory reform and
­paperwork reduction on the national policy agenda. His public speeches and
statements contained many remarks about needless paperwork, the “paperwork mountain,” and the high costs of paperwork. At his request, Congress
created a Commission on Federal Paperwork, which subsequently estimated
that federal paperwork cost “more than $100 billion a year, or about $500 for
each person in the country.”3 By now, paperwork was no longer merely an inconvenience; it was perceived as a costly and unnecessary burden; its benefits
for the operation and effectiveness of the administrative process were slighted.
Information collection lost quite a bit of its legitimacy.
87
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88
3
Policy Formation: Problems, Agendas, and Formulation
The Carter administration continued the campaign to control paperwork,
first through an executive order and then by urging Congress to legislate on
the problem. The result was the Paperwork Reduction Act (a constituent policy), signed into law late in 1980 by President Jimmy Carter despite strong
objections from several executive departments and agencies. The act specified
that all agency requests for information had to be cleared through the Office
of Management and Budget (OMB) and that OMB should act to reduce the
burden of information collection by 25 percent by October 1, 1983. Apparently
this goal was met.4
The struggle against paperwork has continued, however, and the ­Paperwork
Reduction Act periodically has been renewed, most recently in 1998, when
it received strong bipartisan support in Congress. Further reductions in the
­paperwork burden were called for. However, two Senate amendments that
would have reduced the paperwork burden imposed by Congress on federal
agencies through extensive reporting requirements were dropped from the
final act.5 In 2002, Congress passed the Small Business Paperwork Relief Act,
easing the burden on small businesses.
It was estimated that the paperwork burden exceeded 9.6 billion burden
hours—a burden hour being the basic unit of measurement here. Much of this
burden is necessary and serves useful purposes. More than three-fourths of the
burden hours are accounted for by the Internal Revenue Service, which needs
to collect information from taxpayers and employers to determine taxes owed.
The burden is increased by the complexity of the Internal Revenue Code, much
of which can be laid on Congress’s doorstep. Many other agencies need to collect information to improve their operations or to evaluate their effectiveness.
Although the government has struggled to reduce it, the volume of paperwork
has grown.6
Paperwork reduction has symbolic appeal, whatever its practical effects.
(It has been used to exert substantive control over agency actions, as by OMB
delay or disapproval of paperwork requests.) The paperwork burden, or “red
tape,” is something that almost everyone can criticize, however little they may
be affected by it or benefit from its reduction. If agencies are hampered by
paperwork reduction requirements, so much the better is the view of many
people. The “savings” resulting from paperwork reduction are in actuality both
conjectural and, for most people, insignificant. Nonetheless, the “good fight”
against paperwork continued during the Obama administration.
This chapter launches the analysis of the policymaking process as a
­sequence of functional activities, as illustrated by federal paperwork ­reduction.
Three interrelated aspects of policy formation are taken up: the nature of
­public problems, agendas and the process of agenda setting, and the formulation of proposed policies (or alternatives) to resolve problems. The adoption of
policies is the focus of the chapter titled “Policy Adoption.”
The meaning of a couple of terms that appear throughout the book need
clarification here. Policy formation denotes the total process of creating,
­adopting, and implementing a policy. This can also be called the policy process.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Policy Problems
89
Policy formulation, in contrast, refers only to the crafting of alternatives or
­options for dealing with a problem. For example, the policy formulator is
­concerned with developing a proposed course of action to reduce the number
of high school dropouts or lessen the volume of federal paperwork.
The legislature is the primary institutional focus of this chapter, although
the other branches of government also get involved in setting agendas and
formulating policy proposals. The U.S. Supreme Court, for instance, sets its
own agenda when it determines which of the thousands of cases appealed to it
will be heard and decided. Again, much policy (or rule) formulation occurs in
the context of the administrative process as agencies exercise their delegated
­authority to make rules on air pollution, motor-vehicle safety, trade practices,
and other matters.
It should be kept in mind that defining problems, setting agendas, and formulating proposals, together with adoption of policies, are functional categories. Although they can be analytically separated, in actuality they frequently
are interrelated and smudged together. For instance, those who want action on
a problem may try to define it broadly, as affecting large numbers of people,
to help ensure that it gets on a legislative agenda. Again, those formulating a
policy proposal will often be at least partly guided in their efforts by the need
to build support for the adoption of their proposal. Particular provisions may
be included, modified, or excluded in an attempt to win the support or reduce
the opposition of some groups or officials.
Policy Problems
Older studies of policy formation devoted little attention to the ­nature
and definition of public problems. Instead, problems were taken as “givens,”
and the discussion moved on from there. However, it is now conventional
wisdom that if policy study does not consider the characteristics and dimensions of the problems that stimulate government action, it is incomplete. 7 It
is important to know both why some problems are acted on and others are
neglected and why a problem is defined in one way rather than another.
This helps one determine where power lies in the political system. Moreover,
whether a problem is foreign or domestic, a new item or the outgrowth of
an existing policy, or specific or broad in scope helps to determine the nature
of the ensuing ­policymaking process. Evaluating a policy also requires information on the substance and dimensions of the target problem in order to
­appraise the policy’s effectiveness.
For our purposes, a policy problem can be defined as a condition or
­situation that produces needs or dissatisfaction among people and for which
relief or redress by governmental action is sought. All problems are not public problems. What characteristics or qualities make a problem public? Most
­p eople would agree that John Smith’s car’s being out of gasoline is a private problem, however irritating it might be to Smith and his passengers. In
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90
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Policy Formation: Problems, Agendas, and Formulation
contrast, the widespread and continued shortage of gasoline in a city or region
is likely to be perceived as a public problem. What distinguishes the two situations? ­Essentially, public problems are those affecting a substantial number
of people and having broad effects, including consequences for persons not
directly involved.8 They are also likely to be difficult or impossible to resolve
by individual action.
Such occurrences as dirty air, unwholesome food, free-roaming bison, the
practice of abortion, urban traffic congestion, crowded prisons, and global
warming are conditions that become public problems if they produce ­sufficient
anxiety discontent, or dissatisfaction to cause many people to seek governmental remedies. Conditions abound in society.
Moreover, new conditions develop or are identified, and become candidates
for problem status. To name a few: feral cats in town and feral pigs in the
country, sinkholes, bacterial infections in hospitals, obesity, and Asian carp (an
invasive species). Sometimes a problem can be contrived to justify action for
another purpose. Voter fraud or misrepresentation is an example. Cases of voter
fraud have essentially been nonexistent for years. Some ­Republican-controlled
state legislatures, however, enacted laws requiring voters to have specified picture identification to be able to vote. This was said to be necessary to prevent
voter fraud. Most likely, it would reduce voting by racial and ethnic groups
tending to vote Democratic.9
For a condition to be converted into a problem, people must have some
value or standard by which the troubling condition is judged to be unreasonable or unacceptable and appropriate for government to handle. Something
needs to lead people to the conclusion that they do not need to put up with
polluted streams, free-roaming dogs in the city, or a rapidly increasing price
level. If, however, people believe that a condition, such as substantial income
inequality, is normal, inevitable, or desirable, then nothing is likely to happen
because it will not be perceived as a problem.
Conditions thus do not become problems unless they are defined as such,
articulated, and then brought to the attention of government. This action can
be, and frequently is, taken by public officials who are often scouting around
for problems that they can claim credit for solving. Problem definition can be
either a top-down or a bottom-up process.
As stated, to be converted into a problem, a condition must also be seen as
an appropriate topic for governmental action and, further, as something for
which there is a possible governmental remedy or solution (see Figure 3.1).
Those who oppose governmental action to ban smoking in public places may
argue that tobacco smoke is not harmful or that smoking is a matter of individual choice and should not be regulated. Such argumentation is variously
designed to prevent the controversial condition from being viewed as a problem, to keep it off a governmental agenda, or, failing that, to prevent adoption
of a smoking regulation. Professor Aaron Wildavsky contends that officials
are unlikely to deal with a problem unless it is coupled with a solution. As he
states, “A problem is a problem only if something can be done about it.”10
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91
Policy Problems
Figure 3.1
Problem Creation
Problem
Condition
Government
Action Possible
© Cengage learning
Standard or
Value
Hurricanes and earthquakes as such are not likely to become public ­problems
because government can do nothing to prevent them. However, the conditions
of human distress and property destruction caused by ­hurricanes do become
public problems. Relief programs, building regulations, and ­early-warning systems are devised to prevent or reduce hurricanes’ adverse consequences. Quite
a few conditions will not be transformed into problems because they do not
qualify as matters that government can handle ­appropriately and effectively.
“Putting a man on the moon became a problem for ­policy-makers only after it
became technically possible to do so in the late 1950s.”11
Conditions can be defined as problems, and redress for them can be sought
by persons other than those who are directly affected. 12 In the mid-1960s,
poverty was identified as a public problem, and the Johnson administration
­declared a War on Poverty more because of the actions of public officials and
publicists than those of the poor themselves. Legislators are frequently looking
for problems that they can mitigate or solve so as to enhance their reputations
and/or help themselves win reelection. Of course, there is always the possibility that others will define a problem differently than those directly affected.
Indeed, problems frequently are defined or perceived differently by various
persons and groups. One’s perceptions will be shaped by one’s values, information, and experiences. Put differently, how a problem is defined depends
not only on its objective dimensions but also on how it is socially constructed.13
A wealthy person who has never lacked or needed a good job may see little
to worry about when unemployment rates rise and, in fact, may regard an
­increase in unemployment as good, as necessary to prevent inflation, which
he/she sees as the real cause for alarm. However, industrial workers for whom
unemployment is an omnipresent fear may perceive increasing joblessness as a
major threat to their well-being. There is no single correct way to assess a condition and define a problem, although many people will have strong views and
preferences on some matters. Problem definitions compete for acceptance.
To amplify this point, currently some 45 million Americans were not covered by health insurance in 2009. How was this condition perceived? Many
portrayed it as a private problem resulting from how people chose to spend
their incomes. Others saw the lack of health insurance by so many people as
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92
3
Policy Formation: Problems, Agendas, and Formulation
a public problem but disagreed about its cause. Explanations include the lack
of national health insurance, the inadequacies of private health insurance
companies, the excessively high costs of medical care and health insurance,
and the extensive poverty and income inequality in American society. There
was also disagreement as to what form a policy solution should take, if any.
­Conflicting perceptions or definitions of a problem, and disagreement over
remedies, ­reduce the likelihood of positive action. In this instance, however,
­after much struggle, the Patient Protection and Affordable Care Act was written into law. (See more on this topic in the Case Study later in the chapter.)
Although many problems are persistent, how they are defined may change
as values and conditions change. We can use alcoholism (drunkenness) as an
illustration. In the nineteenth century, drunkenness was viewed as a personal
problem, as the product of one’s evil, wicked, or sinful ways, and therefore as
one’s just punishment. In the early decades of the twentieth century, it became
more common to view drunkenness as a social problem that arose from the
response by some individuals to the social, family, and other pressures that
played upon them. Counseling and other social services were seen as appropriate responses.
More recently, alcoholism (no longer called drunkenness) has been defined
as an illness (i.e., a pathological condition) requiring medical treatment and
deserving health-insurance coverage, whatever its immediate social causes.
This medical definition reduces the individual’s responsibility and the stigma
attached to the condition. Public policy, however, has not fully caught up with
the modern definition, and many problem drinkers continue to be dealt with
through the regular law-enforcement processes, especially if they combine
drinking and driving. Mothers Against Drunk Driving (MADD) takes a tough
enforcement stance on this issue.
Conditions that in one era are accepted as the normal order of things
may later, because of social change, be treated as problems.14 For centuries,
­wife-beating, child abuse, and other forms of family violence were thought to
be private matters except, perhaps, when the regular criminal laws, as against
homicide, were violated. They are no longer so treated. Changes in public
­attitudes, media attention, the women’s movement, and other factors changed
our notions about acceptable conduct in family matters. A variety of national
and state laws pertaining to family violence now are on the statute books.
There is still uncertainty as to the pervasiveness of family violence, however.
The definition of problems is often a political process whose outcome
will help determine appropriate solutions. Is access to public transportation for the physically handicapped a transportation problem or a civil-rights
problem? Identifying it as a transportation problem means that the handicapped should have adequate transportation available to them, by regular
modes or any practical means, such as special van service. Defining it as a
civil-rights problem, however, means that the handicapped should have equal
access to regular transportation facilities, which might require installing elevators at subway stations, fitting buses with loading ramps for wheelchairs,
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Policy Problems
93
and making other expensive modifications in transportation facilities. After
some wavering between the two alternatives, public policy moved toward the
­availability-of-transportation solution in the 1980s under the Reagan administration.15 We will now focus on some dimensions of public problems.
An important aspect of problem definition is causation. A condition may be
defined as a problem, but what causes the condition? Many problems—crime,
poverty, inflation, and air pollution—have multiple causes. For example, inflation, the upward movement of prices at an unacceptable rate as measured by
the consumer price index, is a public problem. But what is its cause? Is it the
underproduction of goods and services? Excess demand for goods and services
(i.e., too many dollars chasing too few goods)? Too much money in circulation? The product of inflationary psychology, where people expect prices to
continue to climb? To deal effectively with a problem, one must treat its causes
rather than its symptoms. For many problems, the underlying causes are not
easy to diagnose or evaluate. Identifying the causes of a problem and getting
agreement on them may be a hard task for policy-makers. Defining the problem then itself becomes a problem.
The nature and scope of some public problems may be difficult to specify
because they are diffuse or “invisible.” Because measurement may be quite
imprecise, policy-makers may be uncertain about the magnitude of the problem and in turn about effective solutions, or even whether there is a need
for governmental action. In the 1980s, growing numbers of homeless people
were sleeping in public and private shelters, in the streets, under bridges, and
in other places not suitable for human habitation. Estimates of the number
of homeless people in the United States ranged from 250,000 to 3 million. 16
­Anywhere from 10 to 47 percent of them were thought to be chronically mentally ill. These wide ranges reflect the difficulty in getting an accurate count
of the homeless and their characteristics. The causes of homelessness are
also poorly understood. The Stewart B. McKinney Homeless Assistance Act
of 1987 called for better collection of data on the homeless by the states while
also ­expanding federal assistance for services to this group. Other problems
that are difficult to define or measure include child abuse, learning disabilities among schoolchildren, illegal immigration, and the amount of income not
­reported on federal income-tax returns.
Homelessness has declined markedly in the last couple of decades. In 2010,
the United States Interagency Council on Homelessness set a goal of ending
homelessness between 2015 and 2020. Various federal programs, including
funds from the American Recovery and Reinvestment Act, have contributed to
the decline. The expansion of Medicaid may also help achieve the stated goal.
This aptly leads into the matter of tractability.
Another dimension of public problems is their tractability, or amenability
to solution. Some problems, for instance, require much less behavioral change
than others. Thus, the elimination of discrimination in voting registration in
southern states was fairly quickly accomplished under the Voting Rights Act.
Essentially, what was required to correct the problem was either altering the
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94
3
Policy Formation: Problems, Agendas, and Formulation
behavior of a comparatively small number of voting registrars or bypassing
them by the appointment of federal registrars. School desegregation proved
much more difficult because it involved large numbers of people and strongly
established social patterns. Desegregation was strongly resisted, sometimes
in violent ways. Nearly six decades after Brown v. Board of Education (1954),
some public schools continue to have manifestations of racial discrimination.17
Tractability is also affected by whether problems are tangible or intangible.
Tangible problems, such as scarce jobs, poorly managed public-housing projects, or an overburdened criminal-justice system, can be eased by improving
the incentives and resources available to people and agencies. Other inner-city
problems—racism, inadequate job skills, or despair—are intangible, involving
values. According to Professor James Q. Wilson, such problems “are hard to
­address by money alone because they make whites less likely to invest or ­extend
opportunities and blacks less likely to take advantage of opportunities.”18
The tractability of a problem is further affected by its magnitude and
­complexity. Terrorism is a prime example here. Broadly defined, ­terrorism
involves the use of violence, sabotage, and intimidation by extremist
groups against civilian populations to achieve their goals. Following the
­September 11, 2001, terrorist attack on the World Trade Center towers in New
York City, the George W. Bush administration declared “war” on world terrorism. Some simple ­questions, which defy easy answers, indicate the enormity
of the task ­confronting the administration. Who are the terrorists? Where are
they ­located? Who ­supports them? Where are their targets? What means will
they use? How long will the terrorists persist? Other problems, such as the
farm problem and the energy problem, which have troubled policy-makers for
years, pale in ­comparison to the world terrorism problem.
Severity is a fourth dimension of problems. How serious is a problem and
its consequences for individuals? Society? The environment? How much risk
of harm does it present? Does it deserve space on a crowded policy agenda?
The consensus among scientists and environmental experts is that global
warming (or climate change) is a very serious problem, a looming disaster for
planet earth. The various reports of the United Nations ­Intergovernmental
Panel on Climate Change document this and identify human production of
greenhouse gases as the major culprit. The Kyoto Protocol (1998) represented
an international effort to deal with it. Efforts continue. There are ­dissenters,
deniers, and contrarians. A U.S. senator, James Inhofe (R, ­O klahoma),
­c ontends that it is “the greatest hoax ever perpetrated on the American
­p eople.” ­C ongressman Tom Delay (R, Texas) states that “only nature can
change the ­climate—like a volcano.” What does the reader believe?
Experts and the public sometimes evaluate the severity and risks of problems quite differently. Generally, the public views hazardous waste sites as a
major problem requiring strong, immediate action. Environmental experts,
however, contend indoor radon gas, which is formed by the disintegration of
uranium naturally found in the soil, to be a much more serious problem. It
­receives little attention from rank-and-file citizens, even if they know what it is.
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The Policy Agenda
95
Some of the problems that are acted on by governments are really private
problems. To a large extent, the micropolitical level of politics discussed in the
chapter “The Policy-Makers and Their Environment” focuses on private problems. Private bills passed by Congress that apply only to the persons named in
them deal with private problems, such as immigration-law difficulties. Much
of the time of many members of Congress and their staffs is also devoted to
“casework,” providing assistance to individual constituents in their personal
problems with administrative agencies. This activity does help “humanize”
government by making it more responsive to the problems of private citizens.
This review leads to the question “Why are some matters, apart from their
scope or effect on society, seen as public problems requiring governmental
­action while others are not?” Some answers to this question are provided in the
following discussion of the policy agenda and the process of agenda setting.
The Policy Agenda
One frequently reads about demands being made by this group or
that individual or some public official for action by a governmental body on
some problem, whether it be rough streets or crime therein, disintegration
of the family, or waste and fraud in defense contracting. Of the thousands of
demands made upon government, only a small number will receive serious
consideration at any given time by public policy-makers. In other words, each
problem must compete for official attention because legislators and executives
have limited time and resources. Decisions to consider some problems mean
that others will not be taken up, at least for the time being. The demands that
policy-makers choose to or feel compelled to act on, or at least appear to be
­acting on, constitute the policy agenda,19 which is thus distinguishable from
political demands generally. It should also be distinguished from the term political
(or policy) priorities, which designates a ranking of agenda items, with some
matters being considered more urgent or pressing than others. ­Sometimes a
problem will be labeled as a “crisis,” as in “the health-care crisis,” in an effort
to secure higher agenda status and help ensure action. Crisis conveys notions of
importance and urgency.
To achieve agenda status, a public problem must be converted into an issue,
or a matter requiring governmental attention (see Figure 3.2). Political scientist
Robert Eyestone states, “An issue arises when a public with a problem seeks or
demands governmental action, and there is public disagreement over the best
solution to the problem.”20 A rising crime rate may be viewed as a public problem, but disagreement over what, if anything, government should do about it
creates an issue. In recent years, important public issues have included such
matters as prayer in public schools, illegal drug traffic, illegal immigration, research on and treatment of AIDS, and how the United States should deal with
terrorism. Many stands may be taken or alternatives proposed on such issues,
thereby demonstrating the inadequacy of the old saw that there are two sides
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96
3
Policy Formation: Problems, Agendas, and Formulation
Figure 3.2
The Agenda-Setting Process
Problem
Issue
Policy Entrepreneurs
Institutional Agenda
Mandatory Items
© Cengage learning
Systemic Agenda
to every issue. Issue definition, or “framing” as it is also named ­(“spinning”
is another synonym), is an important aspect of the competitive struggle for
advantage in policy conflicts. A frame, says Professor George Edwards, “is a
central organizing idea for making sense of an issue or conflict and suggests
what the controversy is about and what is at stake.”21 The people who work for
a president, for example, strive to frame issues, such as gun control or global
warming, so as to give an edge to the president’s preferences.
Of the number of policy agendas that can be identified in a political ­system,
Professors Roger W. Cobb and Charles D. Elder specify two basic types: the
systemic agenda and the institutional, or governmental, agenda. The systemic
agenda as they define it “consists of all issues that are commonly perceived
by members of the political community as meriting public attention and as
involving matters within the legitimate jurisdiction of existing governmental
authority.”22 A systemic agenda will exist for every national, state, and local
­political system. Some items may appear simultaneously on many systemic
agendas, such as environmental protection, drug abuse, and crime in the
streets. Other issues, such as the international trade deficit or the building of
a new convention center in a city, will appear only on the national and a local
agenda, respectively.
The systemic agenda is essentially a discussion agenda; it comprises
­matters that people are talking and fretting about. Most of the items on it will
be general or abstract; technical details and specific solutions probably will
not be probed. Many items on a systemic agenda will “go nowhere,” so far as
governmental action is concerned. To have a chance to be acted upon, a problem will have to be moved to an institutional or governmental agenda, which is
where things get done—if they do.
An institutional or governmental agenda includes the problems to which
legislators or other public officials feel obliged to give active and serious
­attention. Many of the issues or problems that draw the attention of legislative or administrative policy-makers are not likely to be widely discussed by
the general public. The public’s cognizance of policy issues is often rather
low; awareness and information are mostly confined to a narrow segment of
the public, that is, to the “attentive public.” The latter may have strong interests in particular issues and access to specialized sources of information.
Many of the issues that are handled by legislatures involve minor legislation
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The Policy Agenda
97
or make technical or incremental changes in current laws, and are essentially
unknown to rank-and-file citizens. They are likely to go unreported by the
general news media.
Because policy decisions can be made at a variety of points in the political
system, there are also several institutional agendas. At the national level one
can identify legislative, executive, administrative, and judicial agendas. An institutional agenda is basically an action agenda and thus will be more specific
and concrete in content than a systemic agenda. Whereas crime in the streets
may be of systemic concern, Congress will be confronted with more fully developed proposals for action in this policy area, such as a program of financial
aid to local law-enforcement agencies or a proposal for constructing additional
prisons. Appearance on an institutional agenda does not guarantee that a topic
will be acted upon, although it clearly increases its chances. Professor John W.
Kingdon makes a useful distinction between subjects on the governmental
(or institutional) agenda that are getting attention and those on the “decision”
agenda, which “are up for an active decision.”23
Institutional agenda items range from mandatory to discretionary.24 Much
congressional time is devoted to considering matters it is required (or strongly
expected) to handle, including the reauthorization of current public programs
(such as the foreign-aid and Head Start programs); the president’s budget
­requests; and, for the Senate, approval of treaties and presidential appointments. Other items, notably proposals for new legislation, whether originating
with members, pressure groups, administrative agencies, or other sources, are
more discretionary. Congressional leaders and members exercise more control
over whether these will be taken up for consideration and decision.
Discretionary items are classifiable as minor and major. Many bills passed
by Congress make technical or incremental changes in existing policies. Some
of them emerge from policy subsystems. Most receive little coverage by the
media. Readers likely are not familiar with the Sonny Bono Copyright Term
Extension Act. Passed by Congress in 1998, it extends the length of copyrights
for books, songs, motion pictures, and other creations for an additional twenty
years. Materials copyrighted by an individual are now protected for the life of
the author or artist plus seventy years; copyrights held by corporations extend
for ninety-five years. (The Constitution states that patents and copyright shall
run for “limited times.” These time periods appear to be a stretch.) The act
resulted from the intense lobbying efforts of a group of large entertainment
corporations led by the Walt Disney Company. Disney faced losing its valuable
exclusive rights to Mickey Mouse, Pluto, Goofy, Donald Duck, and other cartoon characters.25 Although often thought of as “minor,” legislation of this sort
can be very important and valuable to its proponents.
Major discretionary items on the congressional agenda can include such
matters as tax increases or reductions, disaster relief, new ­consumer-protection
measures, or significant alterations in environmental policies. Such items,
although technically discretionary, may take on a mandatory image because
of presidential or societal pressures, or the appearance of “crisis” conditions.
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98
3
Policy Formation: Problems, Agendas, and Formulation
This was the case with Social Security reform in the early 1980s and again
in the late 1990s. Members of Congress felt compelled to act. However, when
­President George W. Bush called for more change in Social Security early in
his second term, nothing was done. After 2009, the so-called national debt
­crisis again gave Social Security a prominent agenda spot.
The number of people affected and the intensity of their interest will vary
across the issues on an agenda. Some matters will attract much interest from
the broad range of citizens and officials; others will attract the ­a ttention
­primarily of policy specialists and those who have a direct stake in them.
­Professor Barbara Sinclair suggests that an agenda “is best conceptualized as
roughly pyramidal” in form. A “limited number of highly salient issues” will be
at the top; as one moves toward the base, there will be “an increasing number
of progressively less and less salient issues.”26 Those at the top would likely
qualify for Kingdon’s decision agenda, although many of them will attract little
attention from the public or the media.
To conclude, a policy agenda is not a matter of precision or fixed content. It
would probably not be possible to secure complete agreement on the content
of any policy agenda, at least if it is somewhat complex, whether it is that of
Congress or a city council. Clues to the content of the congressional agenda,
for example, are provided by presidential messages, legislation singled out by
party leaders for attention, issues discussed in the communications media,
and the like. Inability to enumerate readily all the items on a policy agenda
does not destroy the usefulness of the concept for studying policy.
The Agenda-Setting Process
How, then, do problems reach the agendas of governmental organizations such as Congress? A prominent answer to this query has been supplied
by Professor John Kingdon.27 In an analysis that has captivated many political scientists, he holds that agenda setting can be viewed as comprising three
mostly independent streams of activity (problems, proposals, and politics),
which occasionally converge, opening a “policy window” and permitting some
matters to reach a governmental agenda (see Figure 3.3).
The problems stream consists of matters on which policy players, either
inside or outside of the government, would like to secure action. In the health
area, for instance, people may be worried about the cost of health care, access
to care, the adequacy of disease-prevention programs, or the need for more
biomedical research.
The policy-proposals stream comprises possible solutions for problems.
Public officials, congressional committee staffs, bureaucrats, academics, group
representatives, and others develop proposals. “They each have their pet ideas
or axes to grind; they float their ideas up and the ideas bubble around in . . .
policy communities. In a selection process, some ideas or proposals are taken
seriously and others are discarded.”28 Solutions that survive await problems
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99
The Agenda-Setting Process
Figure 3.3
Kingdon’s Agenda-Setting Model
Policy-Proposals Stream
Politics Stream
Policy
Window
© Cengage learning
Problems Stream
to which to attach themselves. Sometimes, according to Kingdon, those with
“pet” solutions look for problems that can be solved with them. For example,
mass transit has been proposed to redress several problems, including energy
supply, traffic congestion, air pollution, and highway maintenance.
The politics stream includes such items as election results, changes in
presidential administrations, swings in public moods, and pressure-group
campaigns. Occasionally, these three streams converge, and for a short time,
a policy window opens; that is, “an opportunity for advocates of proposals
to push their pet solutions, or to push attention to their special problems”
­becomes available. Sometimes the window opens predictably, as when a law
comes up for renewal; in other instances, it happens unpredictably.29
Kingdon’s streams theory seems to make agenda setting a rather random
or chancy process; much depends upon timing and luck. Without denying
that timing and luck play a part in agenda setting, especially for large or basic
changes in public policy, the process is more predictable, manipulable, and
orderly than he implies. Following is an alternative view of agenda setting.30
At any given time, many problems and issues will be competing for the
attention of public officials, who will also have their own preferred ideas to
push. Only a portion of these problems will succeed in securing agenda status,
however, because officials lack the time, resources, interest, information, or
will to consider many of them. Agenda building is thus a competitive process,
and various factors can determine whether an issue gets on an agenda, including how the problem at issue is defined.
One factor is suggested by political scientist David B. Truman, who says
that interest groups seek to maintain themselves in a state of reasonable equilibrium and that if anything threatens this condition, they react accordingly.
When the equilibrium of a group (and the equilibrium of its participant
individuals) is seriously disturbed, various kinds of behavior may ensue. If
the disturbance is not too great, the group’s leaders will make an effort to
restore the previous balance. . . . This effort may immediately necessitate
recourse to the government. Other behaviors may occur if the disturbance is
serious to the point of disruption.31
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100
3 Policy Formation: Problems, Agendas, and Formulation
Thus, American steel producers and ethanol producers, seeing cheaper imported
steel and Brazilian ethanol as contrary to a satisfactory price and profit situation,
obtained limitations on imports. Companies threatened by ­unfriendly takeovers have likewise sought governmental restrictions on ­corporate acquisitions.
Moreover, when one group gets what it wants from government, this gain may
cause a reaction by other groups, as with organized labor’s ­continued efforts
to secure first the repeal of and then modifications to some of the restrictions
in employee relations and collective bargaining imposed on them by the Taft–
Hartley Act. For years, automobile manufacturers were similarly successful
in delaying imposition of fuel-economy standards set by legislation on energy
conservation. Interest groups thus successfully strive to place issues on an
institutional agenda, but by no means do they account for all issues achieving
agenda status.
Political leadership is another important factor in setting agendas. ­Political
leaders, whether motivated by thoughts of political advantage, the public
­interest, or their political reputations, may seize upon problems, publicize
them, and propose solutions. Of particular importance here is the ­president
because of his prominent role as an agenda setter in American politics.
­Presidents can use the State of the Union, the budget, and special messages
to set the congressional agenda. Media events may accompany these messages
and bring them to the attention of the general public as well. Presidential initiative here tends to be limited by the notion that Congress can handle only
a few major initiatives at a time. Jimmy Carter was criticized for flooding
­Congress with legislative proposals and thereby reducing his effectiveness as
a legislative leader. (In actuality, President Carter got much of what he sought
from Congress.) In contrast, Ronald Reagan successfully focused on tax cuts
and expenditure reductions during his initial year in office.
In his study of presidential agenda setting, Professor Paul Light found that
in selecting major domestic issues on which to advocate action, presidents are
motivated by three primary considerations.32 The first is electoral benefits,
which are especially important during a president’s first term. Certain issues
are seen as critical to electoral success and as vital in building and maintaining
electoral coalitions. There is also a feeling that issues stressed during a campaign should be acted on.
The second concern is historical achievement. Because history surrounds the
office, and the Washington community and others constantly compare presidents,
a president often becomes mindful of greatness, of his or her place in history. Issues
are singled out with which the presidents want to “mark” their administrations.
The third consideration is good policy. Presidents enter office with ideological leanings and personal commitments that may dispose them to act on some
matters even in the face of congressional hostility and bureaucratic resistance.
The importance of some issues, moreover, makes such action imperative. Light
concludes, “Presidents do have notions of what constitutes good public policy.”
This was certainly true for both Ronald Reagan and Barack Obama, although
many people did not agree with what they considered good policy.
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The Agenda-Setting Process
101
Presidents are successful in getting many of their major policy proposals
placed on the congressional agenda. Presidential proposals, however, have
to compete with congressional proposals for agenda space. In their study of
presidential agenda setting, Professors George Edwards and Andrew Barrett
found that for the 1953–1996 period, presidential proposals made up a third of
the congressional agenda. Fewer than half of the presidential proposals were
eventually enacted into law, although presidential proposals fared better than
those of Congress in this regard.33 By no means, then, does securing agenda
status guarantee enactment. Presidents are more likely to get action on what
they want when the government is unified.
The president’s role as an agenda setter for Congress is diminished when
it is controlled by the opposition party.34 The majority party leaders are then
reluctant to accept the president’s agenda as the “starting point for policy
­dialogue.” They take on more responsibility for agenda setting, drawing ­issues
from the complex of matters under examination in committees and ­elsewhere
in Congress. In selecting issues, they are influenced by public opinion,
­congressional support, triggering events, and other criteria.
Members of Congress also may serve as agenda setters. In a study of agenda
setting in the U.S. Senate, Professor Jack L. Walker concludes that there are
some “activist legislators, motivated by a desire to promote ­social change, and
anxious to gain reputations as reformers [who] constantly search for ­issues that
might be transformed into new items on the Senate’s ­discretionary agenda.”35
Senator Ted Kennedy (D, Massachusetts) was ­instrumental in ­putting healthcare reform legislation on the congressional agenda, if not in securing its
enactment. In the House, Representative Henry Waxman (D, ­California) has
been a strong proponent of legislation to control acid rain and other forms of
air pollution.
Members of Congress, interest-group representatives, agency officials,
and citizens who push policy proposals are often referred to as policy entrepreneurs. Much time, energy, and resources may be devoted by entrepreneurs
to keeping an issue alive, building support for it, getting it on an agenda, and
securing ­action on it. Alfred Kahn, an economist who became head of the
Civil ­Aeronautics Board, used his position successfully to generate ­support for
airline deregulation and the abolition of his agency. The role of Ralph Nader
in bringing about automobile-safety legislation is familiar history. ­Professor
John Kingdon observes that policy entrepreneurs may be motivated by “their
straightforward concern about certain problems, their pursuit of such selfserving benefits as protecting or expanding their bureaucracy’s budget or
claiming credit for accomplishment, their promotion of their policy values, . . .
their simple pleasure in participating,” or some combination of these.36
Governmental entities often serve as agenda setters for one another. The
case of highway speed limits is a good example. In 1974, as an energy-saving
measure, Congress adopted the National Maximum Speed Law, which stipulated that states would lose some federal highway funds if they did not reduce
their speed limits to 55 miles per hour. This put the speed-limit issues on the
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102
3 Policy Formation: Problems, Agendas, and Formulation
agendas of state legislatures; 55-miles-an-hour speed limits sprung up across
the nation. More agenda setting on speed limits occurred in the late 1980s,
when Congress permitted the speed limit on rural interstate highways to rise
to 65, and again in 1995, when the maximum speed law was repealed.
Supreme Court decisions have often helped put items on the ­congressional
agenda.37 Congress has tried (unsuccessfully) to overcome the Court’s ­decision
that prayer in public schools is unconstitutional by proposing a ­constitutional
amendment. Several provisions have also been included in ­l egislation to
­r estrict use of federal funds to pay for abortions as a consequence of the
Court’s decision in Roe v. Wade (see the Budget Execution section in the
“­Budgeting and Public Policy” chapter). More frequently, Court decisions
­interpreting and applying legislation trigger congressional responses to overcome their effects. The Civil Rights Act of 1991 offset several Court decisions
that had made it more difficult for job discrimination victims to successfully
sue for damages.
Some matters may achieve agenda status and be acted upon as a
­c onsequence of some sort of crisis—an industrial accident, an airplane
crash, or a natural disaster. Professor Thomas Birkland calls these “focusing
events”— events that are “sudden; [are] relatively uncommon; can be reasonably defined as harmful or revealing the possibility of potentially greater future
harms; have harms that are concentrated in a particular geographical area or
community of interest; and . . . [are] known to policy makers and the public
simultaneously.”38 Such events dramatize an issue and draw wide attention,
causing public officials to feel compelled to respond in some manner. There
may previously have been discussion and advocacy of the need to be prepared
to act on some matter, but without a sense of urgency. A focusing event pushes
the matter onto a policy agenda where action seems likely to occur.39
The September 11, 2001, attack by Islamic terrorists on the World Trade
­Center towers in New York City and the Pentagon in Washington, DC, elevated
terrorism to the top of the national agenda. For a time, domestic issues—­
immigration, health care, bankruptcy, energy—were shouldered aside as
­national officials enacted legislation on terrorism and its consequences. Events
of the magnitude of the terrorist attack that cause concern to intensify are rare.
The slaughter of twenty grade-school children and six educators in
­Newtown, Massachusetts, by a deranged person in December 2012, put the
issue of gun control, which had been languishing, on the decision agendas of various governments—national and state. Political analyst Norman
­Ornstein commented that before the slaughter, there seemed no likelihood of
­Congressional action on gun control. Now it was a possibility. The Senate, he
said, appeared more likely than the House to impose new controls.40
In April 2013, the Senate voted, 68 to 32, to allow debate on gun control
legislation to proceed. The Senate leadership decided that 60 votes would be
needed to approve anything. All of the proposed amendments to a gun bill
failed, although many had majority support.41 Minority rule and the anti-gun
control lobby prevailed once more.
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The Agenda-Setting Process
103
Protest activity, which may include actual or threatened violence,
is ­a nother means by which problems may be brought to the attention of
­policy-makers and put on a policy agenda. 42 During the 1960s, such actions
as the sit-in ­movement, the voters’ rights march in Selma, Alabama (and the
brutal reaction by the Selma police), and the 1963 march on ­Washington
helped keep civil-rights issues at the top of the national policy agenda. ­Riots
in many ­northern cities were also contributory. In more recent years, groups
concerned with women’s rights have utilized various kinds of demonstrations in their efforts to move their concerns onto policy agendas, and with
some success. Gays, lesbians, and antiabortion protesters have also taken
to the streets and engaged in protest activities to call attention to their
problems.
Some problems or issues attract the attention of the communications
­m edia and, through their reportage, can be either converted into agenda
items or, the more likely result, if already on an agenda, given more salience.
A ­classic example is the highly colored and often inaccurate reporting of the
Pulitzer and Hearst newspapers in the 1890s in making Spain’s treatment of its
colonies, particularly Cuba, a major issue and thus doing much to cause the
United States eventually to declare war on Spain.43 More recently, the media
helped make nuclear safety a continuing concern by extensive coverage of such
major events as the meltdown at the Three Mile Island nuclear-power plant in
Pennsylvania in 1979 and the explosion of a nuclear reactor at Chernobyl in
the Soviet Ukraine in 1986, as well as lesser nuclear-safety incidents. This contributed to the decline of the nuclear power industry in the United States. The
April 2010 nuclear disaster at Fukushima Daiichi in Japan, although caused by
an earthquake-generated tsunami, focused attention again on nuclear safety.
It was a setback for the nuclear power industry, which had been experiencing
something of a revival as a clean energy alternative.
Whether the news media are motivated by a desire to “create” news, report all that is newsworthy, stimulate sales, or serve the public interest is not
the question here. Whatever their motives, as important opinion shapers they
help structure policy agendas. Although notions about proper ­news-media
operations and the compelling force of some events limit somewhat the
­discretion the media have in selecting the events (the “news”) they bring to
the public’s ­attention, they nonetheless do have much leeway. The media do
not so much tell people and policy-makers what to think as they do what
to think about.
Changes in statistical indicators also produce awareness of problems and
help move them onto agendas. 44 Governmental agencies and others regularly collect data on many activities and events, such as consumer prices, the
foreign-trade balance, highway deaths, disease rates, infant-mortality rates, and
industrial-accident rates. Health-care cost containment has been an important
issue in ­Washington because statistics indicate that the costs of health care
are rising rapidly. Conversely, as the rate of increase in the consumer price
index remained low in the 1990s, so, too, did public concern about ­inflation.
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104
3 Policy Formation: Problems, Agendas, and Formulation
Although the ­F ederal ­R eserve Board continued to worry about inflation
­(reflecting its policy orientation), most Washington officials became more
­interested in other problems.
Political changes, including election results, changes in administrations,
and shifts in the public mood, may make possible moving onto an agenda
items that previously were unlikely candidates for inclusion. 45 Lyndon
­Johnson’s landslide election in 1964, together with the election of favorable
majorities in both houses of Congress, opened the doors for enacting a flood of
­social-welfare legislation. These doors partly closed two years later when the
voters, reacting negatively to the administration’s ventures in Vietnam, turned
many of Johnson’s supporters out of office.
Political change can also reduce the agenda opportunities for some items.
The Reagan administration’s preference for cutbacks in the government’s
role in society made major new spending and regulatory programs difficult
to ­obtain, and few were proposed. The Republican takeover of Congress in
1995 brought to the fore many proposals for reducing or eliminating national
­government programs, though their success was limited.
The 2009 arrival of the Obama administration in Washington shifted
agenda opportunities from what they had been under the George W. Bush
administration. Environmental and labor interests, for example, now found
doors open that previously had been minimally ajar, at best. Access does not
necessarily mean policy success, however, but it will certainly help.
Finally, items may gain agenda status in rather arcane or peculiar ways. Take
the instance of occupational safety and health. Robert Hardesty, one of President
Lyndon Johnson’s speechwriters, had a brother who worked in the ­Department
of Health, Education, and Welfare’s (HEW’s) Bureau of ­Occupational Safety and
Health, a research unit. At his urging, Hardesty would occasionally insert references to occupational safety and health in the ­president’s speeches. Although
HEW and the labor movement were indifferent to occupational safety, the
­Department of Labor saw in the speech references an opportunity to propose a
program that would win presidential approval. A draft occupational safety and
health bill was included in a package of legislative ideas that Labor sent to the
White House in late 1967. With little urging from Labor, it was accepted and
became part of the Johnson administration’s 1968 legislative program. It did not
win congressional approval that year, but it stayed on the agenda and became
law as the Occupational Safety and Health Act of 1970.46
Although all the possibilities have not been sketched here, my purpose
has been to show that problems can follow a variety of routes in reaching a
­policy agenda.47 Moreover, a number of factors may be instrumental in a given
­instance. Thus, political leadership, media coverage, and statistical analysis
converged to place Social Security solvency on the national agenda in the late
1990s. Of course, all problems do not find a place, or a prominent place, on a
policy agenda. Those opposing action on a problem typically strive to block its
consideration so as to deny it agenda status.
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The Agenda-Setting Process
105
Competition for agenda space occurs not only among those
touting favored proposals but also between those favoring
and opposing action on a problem. Those opposing action and wanting to
maintain the status quo—business groups and conservative organizations are
often involved here— tend to be advantaged in the agenda-status struggle.
They have ample resources, and time is on their side. Moreover, public officials
may be risk averse or more concerned with other matters.
Various tactics may be used by the opponents of agenda status for a problem.48 They may deny that a problem exists, as the tobacco companies did for
decades concerning the use of cigarettes and other tobacco products. As late as
the mid-1990s, tobacco companies testified to Congress that cigarette smoking
was not addictive. Research was sponsored denying adverse effects of smoking.
Secondly, arguments may be presented that a given problem is not appropriate for government action, or that it is beyond the power of government,
or both, for good measure. Opponents of sex education contend that it has no
place in the public school curriculum, being a matter properly left to church
or family.
Third, fears may be expressed (and attempts may be made to create them)
about the negative consequences of a proposed policy. Opponents of the
­Clinton administration’s health-care reform plan, depicting it as excessively
costly, productive of red tape, unduly bureaucratic, and restrictive of individual choice, prevented it from being voted on in Congress.
Fourth, it is sometimes argued that a problem can adequately be handled
by non-governmental means. Opponents of boating-safety legislation have
­often argued successfully that most people do not need to be told by govern­
ment to wear life jackets and to refrain from the use of alcohol while boating.
­Agricultural animals—veal calves, farrowing sows, laying hens—are often
­confined in spaces so small they can barely move. Agricultural groups deny
this is cruel and contend that farmers do not need animal welfare organizations to tell them what to do.
Fifth, another ploy is to call for the creation of a commission or task
force to gain more information on a problem, such as pornography, traffic
­congestion, or global warming. At least for a time this can delay action by
seeming to do something about a problem. The Reagan administration used
this tactic to fend off calls for action on acid rain (or deposition).
Sixth, recourse may be directed to the election process. The National Rifle
Association, with its extensive grassroots organization, has often succeeded
in keeping gun control off legislative agendas. Its actions in supporting opponents of gun control and opposing its proponents seem to intimidate many
legislators. This happens notwithstanding public-opinion surveys that indicate
substantial support for various forms of gun control.
Also of use in understanding why some problems, or potential problems,
such as increasing income inequality in the United States, do not achieve
agenda status, is the concept of nondecision. We now turn to it.
Agenda Denial
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106
3 Policy Formation: Problems, Agendas, and Formulation
Nondecisions
Nondecision-making is defined by Professors Peter Bachrach and
­ orton S. Baratz as “a means by which demands for change in the existing
M
­allocation of benefits and privileges in the community can be suffocated before
they are even voiced; or kept covert; or killed before they gain access to the relevant ­decision-making arena; or failing all these things, maimed or destroyed
in the decision-implementing stage of the policy process.”49 Problems may be
kept off a systemic or institutional agenda in various ways. At the local level,
particularly, force may be utilized, as in the South during the 1950s and 1960s
by white groups to stifle black demands for equal rights. Another possibility is
that prevailing values and beliefs—political culture—may also operate to deny
agenda status to problems or policy alternatives. Our beliefs about private
property and capitalism kept railroad nationalization from ever becoming a
real agenda item—even late in the nineteenth and early in the twentieth centuries, when railroad policy was being developed—except when facets of railroad
operations, such as passenger service (witness Amtrak), became unprofitable
for private enterprise.
A third possibility is suggested by Professor E. E. Schattschneider. “The crucial problem in politics,” he states, “is the management of conflict. No regime
could endure that did not cope with this problem. All politics, all leadership, all
organization involves the management of conflict. All conflict allocates space
in the political universe. The consequences of conflict are so important that it
is inconceivable that any regime would survive without making an attempt to
shape the system.” To survive, then, political leaders and organizations must
prevent problems or issues that would threaten their existence from reaching
the political arena (i.e., from achieving agenda status). The kinds of problems
that they resist will depend upon what kinds of leaders and organizations they
are—whether, for example, they are conservative Republicans or independent
commissions. They will, in any case, resist considering some problems, for, as
Schattschneider contends, “all forms of political organization have a bias in
favor of the exploitation of some kinds of conflicts and the suppression of others
because organization is the mobilization of bias. Some issues are organized
into politics while others are organized out.”50
In studying public policymaking, it is important to know why some
problems are dealt with and others are neglected or suppressed. Recall that
public policy is determined not only by what government does do but also
by what it deliberately does not do. Take the situation of migratory farm
workers, whose problems usually receive short shrift from public officials.
Why? What does an answer to this question tell us about who gets what
and why from the policy process? Is the neglect of migrant workers at least
partly due to nondecision-making? Notwithstanding the somewhat imprecise nature of the concept of nondecision, it has utility for analyzing the
policy process.
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The Loss of Agenda Status
107
The Loss of Agenda Status
Problems that reach agendas may also disappear from agendas. ­Action
may be taken on a problem, or a decision may be made not to take action, not
to enact a law or adopt a rule on a matter. Policy-makers may then ­believe
that the problem has been taken care of and turn their attention to other issues. Whether to levy user fees on commercial companies and other users
of ­inland waterways, such as the Mississippi and Ohio Rivers, which require
maintenance by the Army Corps of Engineers, was a hot issue for a time.51
Once ­legislation imposing user fees was enacted, the issue quickly dropped
from view. The fees are still collected.
Another example is military conscription (the draft), which existed from
1940 to 1973. A salient and divisive issue during the Vietnam War because of
inequities in its administration, its authorization lapsed in 1973 and an allvoluntary military came into being. In 1980, legislation was passed requiring
all males to register with the Selective Service System when they reached the
age of eighteen. No inductions have occurred.
A third example is silicosis, a deadly respiratory illness that afflicts workers in stone quarries, foundries (that make metal castings), and other dusty
workplaces. It received much attention in the early decades of the twentieth
century. After World War II, however, silicosis became defined “as a disease of
the past that could be adequately addressed by medical researchers and engineers working with an enlightened business community.”52 This was an overly
optimistic appraisal. Silicosis continues to be a serious but neglected health
threat to workers in the “dusty trades.”
Factors that may push items from an agenda include changes in or disappearance of the conditions that created a problem, the emergence of new and more
pressing problems, people becoming accustomed to a condition (e.g., construction noise) and no longer calling it a problem, and social or culture change, as
that which converts gambling from an evil into a source of government revenue.
Policy analyst Anthony Downs suggests that an “issue-attention cycle”
causes some public problems to fade from public view.53 The cycle has five
stages that vary in duration:
1. The pre-problem stage. At this time a quite undesirable social condition
exists but has not received much public notice. Some specialists and
interest groups may have become concerned about it.
2. Alarmed discovery and euphoric enthusiasm. Something causes the
public to become aware of and alarmed about the problem. There is a
strong desire to quickly solve the problem, which reflects the notion that
most obstacles to improvement are external. Hence, the solution does not
appear to necessitate fundamental change in society.
3. Realization of the cost of significant progress. Awareness spreads that
solving the problem will entail high costs. People realize that part of the
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108
3 Policy Formation: Problems, Agendas, and Formulation
problem stems from arrangements, such as the millions of cars that cause
traffic congestion, that benefit many people. The nation’s most pressing
social problems usually involve intended or unconscious exploitation of
one social group by another.
4. Gradual decline in the intensity of public interest. As people realize how
difficult and costly it will be to solve the problem, many become discouraged,
others feel threatened, and some become bored. Attention to the issue wanes,
and moreover, by now another issue may be reaching stage 2.
5. The post-problem stage. The issue moves into a “twilight realm” of less
attention. The agencies, policies, and programs created to help solve it
persist and usually have some impact. A supportive subsystem may develop.
Not all major problems go through the “issue-attention cycle.” Those which
do likely possess three qualities in some degree: First, they affect a numerical minority, as in poverty and unemployment. Second, they involve social
arrangements beneficial to a majority or a powerful minority. Thus, car owners and highway lobbies benefit from the ban on using motor-fuel taxes for
mass-transit systems that would aid the urban poor. Third, there are no longer exciting events associated with problems, such as television coverage of
race riots or NASA space shots. The space program, the War on Poverty, the
farm program, and labor–management relations policy all seem to have experienced this cycle. Downs predicted that environmental protection was an
issue unlikely to fade quickly because its support was constantly being renewed.
Time appears to have validated his opinion. What will happen to the “war on
drugs”? To reduction of the national budget deficit? To the imposition of term
limits on elected public officials?
Two Cases in Agenda Setting
To provide further perspective on the agenda-setting process, we can
consider how two regulatory problems of quite different scope, content, and
societal impact achieved agenda status. The first is coal-mine safety, which
today directly affects only a small segment of the workforce and is likely to
be unfamiliar to many readers. Annually, hundreds of workers are killed or
severely injured in coal-mine accidents. Many more suffer from the ravages
of black-lung disease.54 The second is environmental-pollution control, which
has been an important item on government agendas since the early 1970s.
CASE
STUDY
Coal-Mine Safety
Coal mining has long been a highly hazardous occupation
marked by high rates of accidental injury and death. ­Coal-mine
fatalities averaged more than 1,000 annually in the 1930s and the 1940s.
Underground (or shaft) coal mines, which until after World War II produced
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Two Cases in Agenda Setting
109
most of the nation’s coal, tend to be deep, dark, dusty, and dangerous.
­Regulatory activity to protect miners was first undertaken by the state governments early in the twentieth century.55 Because of dissatisfaction with
the ineffectiveness of state regulation, however, federal regulation was
sought by miners and their supporters. After decades of struggle, Congress
enacted the Coal Mine Safety Act of 1952.
Enforcement of the act was entrusted to the Bureau of Mines (this agency
was abolished in 1996) in the Department of the Interior. The bureau, which
also had responsibility for promoting the economic well-being of the mining
industry was often criticized as being too responsive to the mine owners’ interests. Frequent accidents and deaths continued to occur in the coal mines.
For nearly two decades nothing really effective was done to strengthen policy
on mine safety, even though technology was available to improve safety conditions without a major decline in production. One reason for the inactivity was
that underground coal mining is concentrated in a few areas of the country,
such as West Virginia and southern Illinois, and most people are both relatively unaffected by and unaware of the miners’ problems. Also, mine union
leaders were more interested in economic issues.
This situation changed, however, on November 20, 1968, when an
explosion occurred at the Consolidation Coal Company’s No. 9 mine in
­Farmington, West Virginia. Seventy-nine miners were trapped below the
surface, and all died before rescue workers could reach them. This major
tragedy, well reported by the national news media, focused the nation’s attention on the miners’ plight, including not only explosions and other accidents
but also black-lung disease, a chronic and deadly ailment caused by continued inhalation of coal dust. Demanding remedies, the miners staged protest
meetings, engaged in wildcat strikes, and conducted other activities, including a march on the West Virginia state capitol. In March 1969, the West
­Virginia legislature enacted legislation providing compensation for victims of
black-lung disease.
The miners and their leaders continued to press for national legislation
as well, repeatedly threatening a nationwide coal strike if action was not
forthcoming. President Nixon responded by sending Congress a special message, along with a draft bill, on coal-mine safety. The bill was stronger than
one proposed a year earlier, prior to the explosion, by President Johnson. In
­October 1969, the Senate passed a mine-safety bill by a 73 to 0 vote, and a few
weeks later the House did so by a 389 to 4 vote. Signed into law by President
Nixon, the federal Mine Safety and Health Act of 1969 provided for health
standards and stronger safety standards for mines and authorized a blacklung compensation program. The Bureau of Mines continued to have responsibility for enforcing the health and safety standards.56
Mine safety did not drop off the congressional agenda with the adoption of
the new law, however, as frequently happens in such matters, although it did
become less salient. Interested members of Congress continued to monitor the
mine-safety act’s enforcement by the Bureau of Mines, which was criticized
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110
3 Policy Formation: Problems, Agendas, and Formulation
as being too responsive to the mining industry, too willing to trade safety for
more production, and generally lax in enforcing the law. Early in 1973, several bills providing for transfer of mine safety away from the Bureau of Mines
were introduced in Congress. Before action could be taken on them, however,
the secretary of the interior unexpectedly set up a new Mine ­Enforcement and
Safety Administration (MESA) in the department to handle the mine-safety
program separately from the Bureau of Mines.57 This ploy was obviously intended to fend off congressional action.
Because accidents and deaths continued to occur in the coal mines, some
members of Congress transferred their unhappiness with the quality of minesafety enforcement from the Bureau of Mines to MESA. The ­Department of
the Interior was viewed as being lax on health and safety matters. ­Discontent
peaked in 1977, and mine safety returned to the congressional decision
agenda. Amendments to the federal Coal Mine Safety Act transferred
mine-safety enforcement from MESA to a new Mining Safety and Health
­Administration (MSHA) in the Department of Labor, which was viewed as a
more hospitable locale for the program. The 1969 act was also revised in an
effort to expedite setting health and safety standards and imposing penalties
for their violation. Metal and nonmetal mines were also put under the jurisdiction of MSHA. Strongly supported by organized labor, the 1977 legislation
was strenuously opposed by the coal-mining industry.
Enforcement of the mine-safety legislation, which was never stringent,
waned under the Reagan administration.58 A former coal-mine operator was
appointed to head MSHA, and revisions were made in mine-safety regulations
that generally accorded with coal-industry recommendations. Also, legislation
was proposed by the administration that, it was said, would reduce the regulatory burden on mine operators without reducing safety protection for workers. No action was taken by Congress.
In 1987, as a consequence of multiple-death mine accidents and studies
critical of mine-safety enforcement, the issue once again hit the ­congressional
agenda. Hearings were held by both House and Senate committees. At a
­hearing before the Senate Labor and Human Resources Committee, witnesses
decried the laxity of enforcement and supported the creation of a new, independent agency to handle all mine-safety enforcement duties. The committee
chair, Senator Orrin Hatch (R, Utah), and its ranking Democratic member,
Senator Edward Kennedy (D, Massachusetts), joined in assailing MSHA for
weakening safety standards and enforcement programs. No legislation resulted. The Reagan administration, however, did agree to hire about 100 additional mine inspectors, and a rule that had reduced criminal convictions of
negligent operators was rescinded.59
The number of coal-mine deaths has greatly declined in recent years,
in part because the number of workers employed in underground mines
has ­declined as more of the nation’s coal is produced by surface (or strip)
­mining. Less hazardous for miners, surface mining is more hazardous for the
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Two Cases in Agenda Setting
111
environment, which is a problem that President Carter and Congress sought
to deal with by the Surface Mining Control and Reclamation Act of 1977.
Critics of MSHA, taking advantage of the antiregulatory atmosphere created by the new Republican majorities in Congress, put the agency on the
agenda again in 1995. Supported by the owners and operators of coal mines
in eastern Kentucky, which were “among the most dangerous and latest targets” of MSHA, legislation was launched to reduce MSHA’s inspection and
enforcement powers and then abolish it through a merger with the Occupational Safety and Health Administration.60 Called reform legislation, it readily cleared the House Education and the Workforce Committee. It was not
further acted upon during that term of Congress and then dropped off the
congressional agenda.
The enforcement of coal-mine safety rules has fluctuated with control of
the White House. Whereas under the Clinton administration, efforts were
made to strengthen safety rules, under the George W. Bush administration,
enforcement slackened. MSHA, under the leadership of a former coal-industry
executive, moved to weaken some of the rules.
Several coal-mine accidents in early 2006 gave coal-mine safety a prominent place on the national policy agenda. Within a few months negotiations
among Democrats and Republicans in Congress, mining companies, and
mine unions yielded enactment of the Mining Improvement and New Emergency Response Act (the MINER Act). Mine companies were directed to
develop new emergency response plans, to provide more emergency oxygen
supplies, to install wireless underground communications systems, and to
have certified rescue teams at the ready. Stronger penalties were provided
for health and safety violations.61 Violations, accidents, and deaths continue
to occur.
Narratives similar to that of coal-mine safety could be written for many
other relatively “obscure” public problems and the low-visibility policies
involving them. The protection of wild horses in the western states, the
Indian health services program, the regulation of national credit unions,
the Department of Agriculture’s animal damage control program, and the
regulation of ocean dumping are examples of policies that are not widely
known. One will rarely encounter coverage of them in the communication
media.
Collectively, such policies and the problems at which they are directed
comprise a significant part of the work of modern government. Each is of importance to particular segments of the population, who can be counted on to
stoutly support their continuation. Unless something out of the ordinary happens, for example, a scandal or an accident, to stir the public’s consciousness,
they will be handled by political subsystems. Few members of Congress or
White House officials will worry about them.
Now, however, we turn to a complex problem that has drawn widespread
­attention from citizens and officials—environmental pollution and its control. ■
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112
3 Policy Formation: Problems, Agendas, and Formulation
CASE
STUDY
Environmental Pollution Control
Environmental pollution has long been a condition in American
society. The nation’s air, waters, and soil were commonly used
as free or inexpensive means for disposing of wastes. Not until the 1960s,
however, did pollution begin to be widely perceived as a major public problem. Whereas belching factory smokestacks once were thought to be emblematic of economic progress, now they are usually viewed as deplorable
matters requiring control. The national and state governments have enacted
a large volume of legislation designed to control pollution and protect the
environment, often in the face of considerable resistance from economic
development interests. Topics include air, water, drinking water, hazardous
waste, acid rain, pesticides, and solid waste.
Several factors have contributed to making pollution control an important
item on the policy agendas. Early on, a number of triggering events raised
public awareness about the adverse consequences of pollution. The publication in 1962 of Rachel Carson’s Silent Spring called attention to the detrimental effects of the extensive application of chemical pesticides on wildlife
and human beings.62 An oil-well blowout off the California coast near Santa
­Barbara in 1969 polluted miles of beaches and received extensive coverage
by the news media. The first Earth Day, which occurred on April 22, 1970,
elicited the participation of millions of people on college campuses and elsewhere. It represented a tremendous expression of popular interest in protecting the environment. Earth Day continues to be observed on a lesser scale.
Environmentalist J. Clarence Davies argues that underlying the attention
to pollution is the affluence of American society. He explains,
The massive growth in production and in the availability of resources which
have characterized the American economy ... affect the problem of pollution
in several ways. The increase in production has contributed to an intensification of the degree of actual pollution; the increase in the standard of living
has permitted people the comparative luxury of being able to be concerned
about this; and the availability of ample public and private resources has
given the society sufficient funds and skilled manpower to provide the potential for dealing with the problem.63
People who are compelled to continually worry about whether they will
be able to secure the basic necessities of life are likely to have little time or
inclination to fret about pollution. In the developing countries concern about
the problem is still limited; indeed, it is probably not perceived as a problem
by many of their inhabitants. In an affluent society, in comparison, favorable
conditions of life contribute to a growing belief in the need to control pollution. More time for leisure leads to greater demand for recreational resources
and aesthetic pleasures, and a higher level of education enables people to
more readily understand the nature and dangers of pollution and the need
to protect the natural environment. There is considerable accuracy to the
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Two Cases in Agenda Setting
113
contention that pollution control is a “middle-class issue,” a characteristic
that contributes to government’s willingness to respond favorably.
Pollution and its consequences, however, do affect everyone, and that
helps make it an attractive public issue. Pollution control, in turn, can be depicted as an activity that does something for everyone, which enhances its political appeal. Politicians supporting pollution control can portray themselves
as on the side of the angels and as protectors of the public interest. Although
many business groups and industries are opposed to tough environmentalprotection programs, they are handicapped by the issue’s broad appeal and
attractiveness. Not much support can be won by appearing to favor dirtier air
or water. Rather, opposition to stringent control must be indirectly expressed,
as by contending that the cost of controlling pollution will increase the cost of
doing business, cost jobs, or add to inflation. This sort of argumentation has
an abstract quality that reduces its public effectiveness.
Another factor contributing to the political attractiveness of environmental protection is its strong link to public health. Pollution is not benign.
Chemicals and other wastes discharged into the environment have a variety
of adverse consequences for the health of people (and other creatures), consequences that if not always well understood are much feared. The situation is
much like the sentiments expressed in an old song: “Everybody wants to go to
heaven, but nobody wants to die.”
Finally government action to control pollution has created a dynamic that
produces demands for additional and stronger action. We can draw on Davies
again for an explanation:
The issue is given publicity and “respectability” by governmental recognition, and the public learns that something can be done to alleviate the
problem. Once an official agency has been established to control pollution,
that agency becomes a focal point for bringing the issue to the attention of
the general public as well as of other government officials. The members
of the agency have a vested interest in drawing attention to the problem. If
they are successful, private interest groups will take up the call for action
and new groups will be created for the specific purpose of doing something
about pollution. This public concern will in turn strengthen the hand of the
governmental agency. The concern with pollution thus becomes institutionalized and the pressure to take action becomes constant.64
For more than four decades, the control of environmental pollution has
been prominent on national systemic and governmental agendas. New environmental issues, often of a global nature, continue to arise: acid rain (or deposition), depletion of the stratospheric ozone layer, sustainable development,
and world population growth. Disastrous crude-oil spills have focused public
attention on threats to the environment. First, there was the blowout of an oil
well offshore from Santa Barbara, California, then the grounding of the oil
tanker Exxon Valdez in Prince William Sound, Alaska; later came an oil spill
in Michigan’s Kalamazoo River. In April 2010, the “mother” of all oil disasters
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114
3 Policy Formation: Problems, Agendas, and Formulation
occurred: the oil platform Deepwater Horizon operating in the Gulf of Mexico
exploded, releasing an estimated 4.9 million barrels of oil.
International diplomatic events have also focused attention on the environment. Examples include the United Nations Conference on Environment
and Development (the “Earth Summit”) in Rio de Janeiro in June 1992 and
the negotiation of the 1998 Kyoto Protocol on Climate Change (global warming). The periodic reports of the United Nations Intergovernmental Panel on
Climate Change must also be noted.
Focusing events of these sorts help ensure that pollution will remain on
policy agendas at all levels of government in the United States, as well as in
international venues, for years to come.
Also, the impact of the environmental movement merits attention. Many
hundreds of national, state, and local organizations keep a watchful eye on
the environment and government actions and policies affecting it. As an
astute observer remarked: “The many groups marching under the environmental banner continue to grow in number, sophistication, and political
aggressiveness.”65 They can be counted on to continue to strive to put new environmental problems on the agenda or to revive some that have lost salience.
For example, Congress in 1978 banned the sale of interior lead-based paint
because of its adverse health effects. It remains, however, on the walls and
woodwork of many homes and apartments, especially in lower-income areas.
In recent years, it has been identified as a cause of lead poisoning in children,
who ingest paint dust or flakes.66 Remedial action has been called for.
Now it is time to turn our attention to the formulation of policy proposals
intended to resolve or ameliorate policy problems. ■
The Formulation of Policy Proposals
Policy formulation involves developing pertinent and acceptable proposed courses of action (often called alternatives, proposals, or options) for
dealing with public problems. Policy-makers may be confronted with several
competing proposals for dealing with a problem, or they may have to struggle
with devising their own alternative. Policy formulation does not always culminate in a law, executive order, or administrative rule. Policy-makers may
decide not to take positive action on a problem, but instead to leave it alone, to
let matters work themselves out. Or they may be unable to agree on what to do.
For example, because Reagan administration officials could not agree on how
to revise an executive order on affirmative action in hiring by governmental
contractors, the existing order was left intact. It continues to define national
policy. In short, that a public problem reaches a policy agenda does not mean
positive action will be taken or, if it is, that it will be soon in coming. ­Decades
of complaints, recommendations, studies, and failed attempts preceded the enactment by Congress of the Family Support Act (FSA) of 1988 to reform the
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The Formulation of Policy Proposals
115
nation’s welfare system. FSA satisfied the demand for welfare reform only for
a short while, being replaced in 1996 by the Personal ­Responsibility and Work
Opportunity Act. Awareness of a problem does not guarantee positive governmental action, although unawareness or lack of interest pretty much ensures
inaction.
Those who formulate alternatives to resolve or ameliorate problems—
for example, water pollution, catastrophic health care, corporate financial
­practices, or telecommunications regulation—typically do not have to start
from scratch. Over time, a vast pool of policy ideas has been developed.
Some have been ­enacted into law; many have not. All, however, are available,
­perhaps in modified form, to would-be formulators, who often ask how similar
problems have been dealt with. Mimicry is a common form of policy formulation. Policy proposals are likely intended to make incremental changes in
­existing policy. Radically innovative proposals are scarce. To paraphrase King
­Solomon, there is not much new under the sun (Ecclesiastes 1:9).
Policy formulators need to keep several factors in mind that will affect
their chances of producing a successful policy. First, is the proposal technically sound? Is it directed at the problem’s causes to the extent that they can be
ascertained? To what extent is the proposal likely to resolve or ameliorate the
problem? If recession is the problem, as in 2009, will spending programs or tax
cuts provide more economic stimulus? If taxes are cut, will people spend the
proceeds? Or will they save the money or use it to pay off existing debts, which
will not do much to revive the economy?
Second, are the budgetary costs of the proposal reasonable or ­acceptable?
This will not be a significant concern for many regulatory proposals, at
least insofar as direct governmental costs are at issue. But what about the
­compliance costs imposed on private entities? Currently, the high cost of covering the many millions of people without health care coverage is bedeviling
policy-makers.
Third, is the proposal politically acceptable? Can it gain enough support
from legislators or public officials to be adopted? Can it win bipartisan ­support
if that is thought necessary or important? The addition or deletion of various
provisions may be warranted in order to gain support.
Fourth, if the proposal becomes law, will it be acceptable to the public? Will those affected be inclined to comply? A classic case involved a rule
­promulgated by the National Highway Traffic Safety Administration (NHTSA)
requiring that new cars be equipped with an ignition interlock system that
prevented starting the motor unless the driver’s seat belt was buckled. Public
reaction to the rule was quick, strong, and adverse. Congress hastily enacted
legislation repealing the rule. NHTSA’s attention turned to airbags, another
idea that had been circulating in the automobile safety policy community. In
time this idea gained public acceptance (and that of the automobile industry).
Airbags have now become standard equipment in cars, and most people have
become wise enough to buckle up.
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116
3 Policy Formation: Problems, Agendas, and Formulation
Who Is Involved? In discussing who is involved in developing policy propos-
als, we focus ­primarily on the national level in the United
States. In the twentieth and twenty-first centuries, the president, together with
his chief aides and advisers in the ­Executive Office of the President, has been
the leading source of initiative in forming major policy proposals. (At the state
level, governors usually play the same role.) The origins of these proposals are
many. Some may have originated in the EOP agencies; more likely, however,
they bubbled up from the bureaucracy or had been floating around Congress
and the Washington community for some time and were taken over by the
president.
The members of Congress and the public have come to expect the ­president
to present policy recommendations to Congress for consideration. Years
ago, President Dwight Eisenhower was the target of much criticism, even
from members of his own party, when in his first year in office he chose
not to ­submit a legislative program to Congress. Moreover, the members of
­Congress have come to expect the chief executive to present them with draft
bills ­embodying his recommendations. What the members of Congress want
is “some real meat to digest,” not merely some good ideas to consider. “Don’t
expect us to start from scratch on what you want,” a committee chair told an
Eisenhower official. “That’s not the way we do things here—you draft the bills,
and we work them over.”67 As this quotation implies, Congress does not always
proceed kindly in handling the president’s proposals (far from it), but presidential recommendations do, among other things, help Congress set its agenda
and indicate where the president stands on some major issues, which is useful
information to members of Congress.
Many policy proposals are developed by officials—
both career and appointed—in the administrative departments and
­agencies. Continually working with governmental programs in agriculture,
health, ­welfare, law enforcement, foreign trade, and other areas, they become
aware of new policy problems, or deficiencies in existing laws, and develop
proposals to deal with them. These plans are then transmitted to the executive
and, if in accord with the president’s policies and programs, sent on to ­Congress.
Agency officials, because of their specialization, expertise, and ­continued
involvement in particular policy areas, are in a good technical position to engage
in formulating policy.
Many agency proposals are designed to modify or strengthen existing laws,
typically to the benefit or advantage of the proposing agency. During their
­administration, loopholes, weaknesses, or omissions may have been identified. A large, complex piece of legislation, the Tax Reform Act of 1986, which
reduced income-tax rates, contained numerous technical errors when it was
passed, typical of such legislation. Two years were required for Congress to
pass “corrective” legislation: the Technical and Miscellaneous Tax Act of 1988.
The reason for the delay lay not in correcting the technical errors, which were
GOVERNMENTAL AGENCIES
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The Formulation of Policy Proposals
117
readily taken care of. Rather, problems arose in reaching agreement on new
substantive provisions, some raising revenue and others providing tax breaks
for various individuals, companies, and groups that senators and representatives wanted to put into the tax law. The need to correct the 1986 law provided
them with an opportunity and a legislative vehicle for additional tax action.
Temporary organizations, sometimes called
“­adhocracies,” may be established by the president to study particular policy
areas and to develop policy proposals.68 These include presidential commissions, task forces, interagency committees, and other arrangements. Except
for interagency committees, their memberships may include both legislative
and executive officials as well as private citizens.
The President’s Commission on Privatization, set up by President ­Reagan,
recommended that various services provided by the U.S. Postal Service and
some federal prisons be turned over to private contractors. The commission also supported previous proposals by the administration to sell some
­governmental petroleum reserves and marketing administrations for electric
power. Advisory commissions of this sort are variously employed to develop
policy proposals, to win support for those proposals through the endorsement
of their usually prestigious members, or to create the appearance of government concern with some problem.
Presidential commissions, however, may not always produce the sorts of
­policy recommendations preferred by their appointer. The Brady Commission
was appointed by the Reagan administration to investigate the stock-market collapse of October 19, 1987, and to make recommendations for preventing future
recurrences. To the administration’s surprise, the commission ­recommended
tighter governmental control, preferably by the Federal ­Reserve Board, of trading activities on the stock and futures markets. Finding such advice uncongenial, the administration appointed an interagency ­committee, which drew its
members from the various financial regulatory agencies, to ­review the recommendations of the Brady Commission and others. The ­interagency committee
(formally, the White House Working Group on ­Financial Markets), composed
of conservative administration officials, subsequently favored making only
minimal changes in regulatory policies, which was in line with presidential
preferences.69 Doing little or nothing is often a preferred policy option, notably
among conservatives, on economic regulatory problems.
President Lyndon Johnson made extensive use of task forces to develop legislative proposals, appointing more than 100 of these groups during his tenure.70 He believed that task forces, composed of outstanding private citizens
and top administration officials, would be more innovative and imaginative
in developing proposals for new policies than would the national bureaucracy.
He was quite pleased with the results. His successors in the 1970s and 1980s
made little use of task forces, perhaps because they were less activist in their
policy inclinations.
PRESIDENTIAL ORGANIZATIONS
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118
3 Policy Formation: Problems, Agendas, and Formulation
Another arrangement is a committee jointly composed of executive
­ fficials, members of Congress, and perhaps private citizens appointed by
o
the president and legislative leaders to devise a solution for a program. The
­National Bipartisan Commission on the Future of Medicare is an example.
Created by statute in 1997, it consisted of seventeen legislators and health-care
policy experts selected by the president and congressional leaders. Its task was
to make recommendations on Medicare’s long-term structural and financial
problems, matters on which Congress had been unable to devise acceptable
answers. The commission conducted extensive deliberations. When its March
1999 deadline for reporting came, however, it was unable to agree on a reform
proposal, which required approval of at least eleven of its members. Many of
Medicare’s problems remain unresolved.
President Barack Obama created by executive order the National Commission on Fiscal Responsibility and Reform, consisting of three ­Democrats
and three Republicans from each house of Congress and six presidentially
appointed civilians. Its task was to make recommendations “to bring the budget into primary balance and to meaningfully improve the long-run fiscal outlook.” The commission prepared an extensive report but failed to win enough
votes from its members to be acted upon. (For more, see Chapter 5 on Budgeting and Public Policy.)
LEGISLATORS In the course of congressional hearings and investigations, through
contacts with administrative officials and interest-group representatives, and
on the basis of their own interests and activities, legislators receive suggestions
for action on problems and formulate proposed courses of action. The capacity of members of Congress to engage in formulating policy has been strengthened by the creation of the House and Senate Offices of the Legislative Counsel
and the Congressional Research Service (a part of the Library of ­Congress).
Increased staff resources for both individual members and ­committees also
have had a positive effect. Indeed, much of the work in drafting legislation is
handled by Congressional staff, who possess the requisite knowledge.
In some policy areas, Congress has done much of the formulation: environmental protection, agriculture, welfare reform, and energy ­conservation are
examples. Both the Clean Air Act of 1970 and the Clean Air Act ­Amendments
of 1990, in final form, were primarily legislative products. 71 They represent
markedly different styles in formulation. The landmark 1970 act takes up
forty-seven pages in the statute books. Focused mostly on ­setting goals for the
reduction of air pollution, it accorded much discretion to the ­Environmental
Protection Agency (EPA) and industry in achieving them. In contrast, the
1990 Clean Air Act Amendments are several hundred pages in length and
are studded with many specific requirements, timetables, and “hammers”
(tough provisions intended to compel action). For example, the act designated 189 hazardous chemicals that the EPA is to regulate. All of the detail is
­intended to limit the discretion of administrative officials in implementing the
act. In part, this reflects distrust of Republican-appointed administrators and
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The Formulation of Policy Proposals
119
federal judges by Democratic congressional majorities. But also, it signifies the
willingness and capacity of Congress to enact more detailed legislation and to
engage in what some call “micromanagement” of the implementation process.
Much of the actual writing of legislation is handled by congressional staff
members possessing expertise in agricultural, environmental, taxation, or
other policy areas. They worry about the details of legislation—the choice
of words or phrases, the inclusion of particular provisions, and whether if
­enacted it will do what its supporters want done. House and Senate staff members also do much of the bargaining over legislative details. Also, each house of
Congress has an Office of Legislative Counsel. Collectively, these units employ
several dozen lawyer-technicians to perform the technical work in drafting
­legislation, including fitting it into the existing body of law.72
Interest groups have a major role in policy formation, ­often
going to the legislature with specific proposals for legislation. They may also
work with executive and legislative officials to develop and enact an officially
proposed policy, perhaps with some modifications to suit their interests.
­Environmental, agricultural, and pesticide manufacturers were major players in formulating the legislation in 1988 that amended and reauthorized the
­Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The act is intended to protect the public against harm from hazardous pesticides used on
farm crops. Another example is the Israeli lobby, which consists of a number
of groups and has been very influential and successful in shaping American
financial aid to Israel.
At the state level, interest groups may play a big part in formulating legislation, especially on complex and technical issues, because state legislators ­frequently lack the time and staff needed to cope with such matters. It is
­reported that the Illinois legislature customarily enacts legislation in labor–
management relations only after it has been agreed to by representatives of
organized labor and industry.73 Thus, by custom, private groups can become
the actual formulators of policy.
Competing proposals for responding to a problem may emanate from
­several of these sources, as in the case of medical care. Cooperation is also a
possibility. Another alternative is to draw on a favored source. George W. Bush
administration officials worked with petroleum industry representatives, while
paying little attention to environmental groups, in developing its 2001 energy
proposal. It was not enacted into law until 2005, perhaps because of its complexity and the controversy stirred by its origins. Increasing domestic energy
production was its main concern. In contrast, when the Obama administration
moved on financial regulation, the bill it sent to Congress was put together
within the administration. Congress, of course, made extensive changes before
its enactment.
Formulators can also draw on the experiences of other governments, foreign and domestic, for policy ideas and to gain notions of what works and what
does not work. For better or worse, the American states sometimes mimic one
INTEREST GROUPS
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120
3 Policy Formation: Problems, Agendas, and Formulation
another. Obama administration officials, in developing proposals to deal with
the Great Recession in 2009, looked at what Japan had done in the 1990s when
confronted with a severe economic downturn. Japanese policy-makers had
­refused to take sufficiently strong action to counter the decline, so it persisted.
Policy Formulation as a Technical Process
Policy formulation involves two markedly different sorts of activities.
One is to decide generally what, if anything, should be done about a problem.
Thus, in the earlier illustration we find the question “What kind of national
health-insurance system should we have?” In other instances, the question may
be “What sorts of restrictions should be imposed on the practice of abortion?”
or “What should be the minimum-wage level, and who should be covered by it?”
Answers to these questions take the form of general principles or statements.
Once such questions have been resolved, the second type of activity comes into
play. Legislation or administrative rules must be drafted that, when adopted,
will appropriately carry the agreed-upon principles or statements into effect.
Often new legislation must be appropriately tied into existing statutes. This is a
technical and rather mundane but nevertheless highly important task. The way
a bill is written and the specific provisions it includes can substantially affect its
administration and the actual content of public policy. Poor drafting can result
in a statute like the one enacted by the Kansas legislature early in the twentieth
century. It provided that when two trains met on the same track, each should
get off onto a siding until the other had passed. (Think about this.)
An informative historical illustration of what can result from careless formulation is provided by the National Defense Education Act of 1958, enacted
after the launching of the Soviet Sputnik and intended to help the United
States “catch up with the Russians” in scientific and engineering education.
This illustration also provides a glimpse into how the fear of communism
­affected politics and policymaking in the United States during the Cold War
years. A provision in the act stating that students receiving graduate-fellowship
assistance had to sign a noncommunist affidavit, or “loyalty oath,” quickly produced a great deal of controversy.
Liberals criticized the oath requirement as an affront to the patriotism of
students and as unnecessary, among other things. To them it was an important
public problem requiring redress. Conservatives defended the loyalty oath as a
necessary means of preventing financial aid from going to Communists (who
were then much out of favor in the United States) and wondered why any loyal
American would balk at signing such an oath. In short, they saw no problem.
Some universities announced they would not participate in the fellowship program if the oath requirement were retained. Apparently, few graduate students
who qualified for fellowships, practical souls that they were, declined to sign
the oath and give up the money. Eventually, the oath was replaced by a milder
and more acceptable “loyalty affirmation.” Symbolic language is important.
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Policy Formulation as a Technical Process
121
Despite the controversy sparked by the oath requirement, there had been
no discussion of it either in the committee hearings or during the floor debates
on the act. No one had advocated its inclusion. How, then, did it find its way
into the law? The answer to this question is not very dramatic, but so it goes
with answers to many public-policy questions. The person drafting the formal
language of the act copied some of its fellowship provisions from an existing
statute; one of these provisions (it can be called “boilerplate”) was the loyaltyoath requirement. It had caused no dispute under the earlier law. But when it
was discovered in the 1958 act, the spat began. One moral that can be drawn
from the story is that often it is easier to get a provision into a law than it is to
remove it later. Bill drafters frequently borrow language from laws already on
the books when they write new legislation.
The writing of laws and rules has to be done skillfully because as soon as
these laws or rules go into effect, people will begin looking for loopholes or trying to bend the meaning of the language to their advantage.
The Emergency Economic Stabilization Act of 2008 authorized the
­expenditure (or investment) of up to $700 billion to alleviate the nation’s
­financial crisis. It established the Troubled Assets Relief Program (TARP) to
buy bad mortgage-related assets from banks, who had unwisely invested in
large amounts of them. Somewhere along the way to adoption, the phrase “or
other financial instruments” was added to the act. Consequently, when the
Treasury Department switched from buying troubled assets to providing capital to banks (The Capital Purchase Program), it had legal authority to do so,
much to the dismay of many members of Congress and others. Many banks
chose to hoard their new capital rather than lending, as was intended.
Clarity in phrasing and intent also may help protect laws and rules against
unfavorable judicial interpretations and provide clear guidance to those assigned the task of implementation. Congress and most of the state legislatures
now have bill-drafting services to assist them in writing legislation. They also
draw on the expert services of committee staffers, bureaucrats, and interestgroup representatives.
Confronted with the task of interpreting a law that is unclear in meaning
or intent, judges traditionally have sought guidance by examining the law’s
legislative history: hearings, committee reports, and congressional debates
­recorded in the Congressional Record. This contextualist approach often serves
to clarify the meaning of the law. Sometimes attempts are made in Congress
to construct legislative histories that will support favored interpretations.
Floor statements and colloquies are used for this purpose. The president of the
American League of Lobbyists states: “Often a bill is written too broadly and
Congress says, ‘We’ll fix it up with legislative history.’ Lobbyists frequently suggest terminology, phrases, ideas, concepts.”74 Legislative history needs to be
read with care and some skepticism.
Conservative judges led by Justice Antonin Scalia of the U.S. Supreme Court
express strong doubts about using legislative history to comprehend congressional intent. Scalia contends that it is a judge’s duty to interpret the text of
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122
3 Policy Formation: Problems, Agendas, and Formulation
statutes, not to attempt to discover legislators’ intentions by reading ­legislative
history.75 Should this textualist, or “plain meaning,” approach to statutory
interpretation catch on—and it has quite a bit of support from ­conservative
judges appointed by the Ronald Reagan and George Bush ­administrations—it
would put pressure on congressional bill drafters to produce legislation with a
minimum of loose, ambiguous, or sloppy provisions.
Of course, as we saw in Chapter 2, titled “The Policy-Makers and Their
­Environment,” if Congress disagrees with judicial interpretation of its ­intent,
the court’s action can be overcome by enacting legislation clarifying the
­meaning of the law. Between 1967 and 1990, Congress enacted laws reversing
or modifying at least 220 lower court and 120 Supreme Court rulings.76 All of
this makes the courts an integral part of the legislative process.
CASE
STUDY
Formulating Policy: The Patient Protection
and Affordable Care Act
Since the end of World War II, national medical care issues
have frequently appeared on the national policy agenda. President Harry
Truman called for “compulsory national health insurance.” Some members
of Congress introduced legislation to accomplish this. Strong opposition,
especially from the then-powerful American Medical Association, which
erroniously called the proposal “socialized medicine,” caused its demise.
At the same time, however, increased federal spending for hospital construction and medical research easily passed muster.77
The Johnson administration succeeded in persuading Congress to enact
legislation creating the Medicare (for the elderly) and Medicaid (for lowincome people) programs. The Nixon and Carter administrations advocated
legislation expanding health-care coverage, as did Senator Ted Kennedy
(D, Massachusetts), a noted policy entrepreneur on this topic. Nothing came
of these various efforts.
Health-care reform, which had retained a spot on the national agenda, was
a major issue during the 1992 presidential campaign. Soon after taking office,
the Clinton administration appointed a Task Force on National Health Care
Reform chaired by Hillary Rodham Clinton. In the course of several months,
assisted by some 500 public-and-private-sector health-care specialists, the task
force produced a complex, 1,300-page bill. Provisions included mandatory
employer-based coverage, health-insurance purchasing cooperatives, limits on
consumer expenses, and partial funding by an increase in tobacco taxes.
Various other health-care reform plans, including one for universal ­national
health insurance, were crafted and introduced by members of ­Congress. Strong
opposition to the Clinton plan quickly surfaced from various health-care organizations, notably the Health Insurance Association of ­America. Members of Congress were unable to agree on anything. So, once more, the status quo prevailed.
The Clinton plan failed to reach the floor of Congress.
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Policy Formulation as a Technical Process
123
In 1995, President Clinton and the new Republican-controlled Congress focused on holding down the cost of the Medicare and Medicaid programs. That
did not work out very well, either. The George W. Bush administration demonstrated little interest in general health-care reform. It did produce Medicare
Part D, which provided limited coverage for prescription drug expenses.
In the 2008 presidential campaign, Barack Obama initially showed a
meager grasp of health matters. As the campaign wore on, his knowledge increased and by the time he won election, he was committed to general healthcare reform. We pause now to look at the health-care situation in the United
States in 2009.
Many people, especially those opposed to health-care reform, that is, most
Republicans and conservatives, often proclaimed that the United States has
“the greatest health-care system in the world.” At its best, American health
care is excellent, especially for those with lots of money and/or premium
health insurance. Some 46 million people had no health insurance; others
had inadequate coverage. The United States was the only industrialized demo­
cracy that did not in some way have universal health-care coverage.78 Yet the
United States spent 16 percent of its Gross Domestic Product on health care,
considerably more than any other country. Moreover, on various health care
measures, the U.S. did not do well, ranking fifteenth on avoidable deaths and
twenty-fourth on healthy living expectancy. The British, the Canadians, and
the French, for instance, spent less and had higher-rated health-care systems.
The preceding paragraph makes a case for needed improvement in health.
Here we will look at something that makes change difficult—what Professor
Paul Starr labels the “health policy trap.” Although an increasing number
of Americans have no health insurance or inadequate financial protection
against illness, the health-care system satisfies enough people to make reform
hard to achieve. Starr explains:
The key elements of the trap are a system of employer-provided insurance
that conceals its true costs from those who benefit from it; targeted government programs that protect groups such as the elderly and veterans, who
are well organized and enjoy wide public sympathy and believe that, unlike
other claimants, they have earned their benefits; and a financing system that
has expanded and enriched the health-care industry, creating powerful interests adverse to change.79
The Obama administration and Democratic majorities in Congress were
able to circumvent this trap. The price was considerable political capital and
willingness to agree to more limited legislation than many preferred.
Rather than present a complete presidential plan to Congress as ­President
Clinton had done, Obama left most of the details to Congress. In various
speeches and statements, he did set forth some goals for health-care reform.
These included expanding access to health insurance and medical services;
regulating the private insurance business to curb some of its bad practices,
such as denying coverage for “existing conditions”; raising new revenue and
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124
3 Policy Formation: Problems, Agendas, and Formulation
cutting the costs of existing programs to pay for expanded coverage; and lessening the rate of growth in health-care spending, both public and private.80
Early on in the health-care policy struggle, the president, administration
officials, and congressional leaders met and negotiated with representatives
of health-care organizations to lessen their opposition. In time, bargains
were arrived at. One involved the lobbying group for the drug industry—the
Pharmaceutical Research and Manufacturers of America (PhRMA). PhRMA
agreed to provide $80 billion in cost savings for drugs under government
programs and to sponsor advertising in support of reform. In return, PhRMA
got a pledge that the government would not permit the importation of lowercost drugs or engage in negotiations over Medicare drug prices, among other
things. This was worth a lot of money for the drug companies. The hospital
associations agreed to payment reductions that would save the government
$155 billion over ten years. The hospitals were spared more stringent cost
controls and would benefit from the additional revenue they would gain from
expanded health insurance coverage.
In the House, three committees—Energy and Commerce, Ways and
Means, and Education and Labor—considered and approved versions of
health-care legislation, which were then melded into a single bill. Features of
the bill included a national health insurance exchange, a public insurance
option, an individual mandate to purchase insurance, subsidies for lowerincome people, and a requirement that most medium and large employers
offer insurance coverage or pay a substantial penalty.
The 255-member Democratic majority in the House was a mixture of liberals, moderates, and conservatives. Speaker Nancy Pelosi strove mightily,
drawing on all of her legislative skills, to construct a 218-member majority.
The Republicans offered lots of criticism and opposition to the bill, but only
one vote (a Louisiana Republican). As summer wore on into fall, Pelosi found
herself a few votes short of the needed majority. Consequently, she decided
she had no choice other than to negotiate with Representative Bart Stupak
(D, Michigan). Stupak was both a strong supporter of health-care reform and
an intense opponent of abortion. He wanted strong antiabortion language in
the bill, contending that lacking this, he and several other Democrats would
vote against. After much bargaining failed to satisfy both sides of the issue,
Pelosi gave in and let Stupak offer an antiabortion amendment, which was adopted with a vote of 240 to 194 (64 Democrats and 176 Republicans in favor).
The health-care reform bill then passed, 220 to 215, with 39 mostly Blue Dog
Democrats joining the Republicans in voting no. We now turn to the Senate.
In the Senate, health-care reform bills were handled by the Health, Education, Labor, and Pensions committee (HELP) and the Finance committee.
HELP, chaired by Senator Chris Dowd (D, Connecticut), who had taken over for
the ailing Senator Ted Kennedy (D, Massachusetts), reported out a bill in July.
Senator Max Baucus (D, Montana), chair of the Finance committee, wanted
to put together a bill that would draw bipartisan support. To this end, he put
together a group from his committee that became known as the “Gang of Six,”
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Policy Formulation as a Technical Process
125
consisting of himself, two other Democrats, and three Republicans. With the acquiescence of Senate Democratic leader Harry Reid (D, Nevada) and the White
House, the Gang of Six engaged in meetings and negotiations for four months.
It became obvious, however, that they would not produce a bipartisan bill.
­Baucus then decided to use the regular committee process and mark up a bill.
This was done and it was reported out by a 14-to-9 vote after several days of
debates and amendments. The only Republican voting for the bill was ­Olympia
Snowe (R, Maine). (She eventually crawfished and voted against health-care
reform.) Republicans offered a stew of amendments intended to weaken or gut
the bill. Since they were in the minority, they fared poorly.
Majority leader Reid cobbled together a compromise bill from the two
committee versions to appeal to the various segments of his party. The House
operates by majority rule, but in the Senate 60 votes are needed because of
the filibuster. In July 2009, Reid had those 60 votes following the decision that
Democrat Al Franken had won the contested Minnesota Senate race. These
votes included two independents—Bernard Sanders of Vermont and Joseph
Lieberman of Connecticut—who caucused with the Democrats.
Because Reid could not lose a single vote, unlike Pelosi who had some to
spare, individual senators had strong leverage to bargain for preferences, if
they so chose. And some did. Senator Mary Landrieu of Louisiana was kept on
board by the “Louisiana Purchase,” the promise of funds to offset the impact of
­Hurricane Katrina in 2005 on health-care funding. The “Cornhusker Kickback,”
which would send extra Medicaid money to Nebraska, was used to secure the
vote of Senator Ben Nelson. These deals received much criticism, especially from
­Republicans, though they were not uncommon in congressional bargaining.
Then there was the unpredictable Joe Lieberman, who wanted and got
assurance from Reid that the bill would include neither a public option
(a government-sponsored insurance plan) nor permit people in the 55–64 age
bracket to “buy in” to Medicare. The Medicare option was favored by some
liberals as an alternative to the public option, which by then had been much
watered down.
Having 60 votes in hand, Reid brought the health-care reform bill to the
Senate floor on December 18. Over the next few days, three successful cloture
votes were needed as the Republicans did their best to obstruct the proceedings. Finally, on December 24, the reform bill passed, 60 to 39. The Democrats
were very pleased, even though some of them had not gotten all that they
wanted included in the bill.
The second action involved enactment of the reconciliation (or supplemental) bill that made changes in the Affordable Care Act wanted by the House
and made the Senate bill more progressive. The “Cornhusker Kickback” was
deleted, so Senator Ben Nelson was now free to follow the dictates of his conscience. After some forty Republican amendments were rejected, by a vote of
56 to 43 the Senate passed the bill. The House then cleared the bill by a 220to-207 vote. A few days later, President Obama signed the Health Care and
­Education Reconciliation Act into law.
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126
3 Policy Formation: Problems, Agendas, and Formulation
Before turning to a summary of the Affordable Care Act, some explanation
of the appearance of “education” in the Reconciliation Act is in order. By this
act, the federal government became the only provider of student loans; federal
guarantees of loans by private lenders were not longer available. This was
estimated to save the government about $61 billion over ten years, much of
which would be used for Pell grants and other education programs. The gravy
train of risk-free loans would no longer be on track for private lenders.
A brief summary of the Affordable Care Act follows.81 Most persons without
health insurance were required to purchase it or pay tax penalties (the “individual
mandate”). Subsidies were available to help lower income people. The states were
expected to set up health insurance exchanges to assist those needing to buy insurance. Employers did not have to offer health benefits, but penalties would be
imposed on many who did not. Insurance companies could no longer refuse to
cover preexisting conditions, contrive ways to cancel coverage, or put limits on
annual or lifetime coverage. Children were covered by their parents’ plan until
they turned twenty-six. Medicaid was expanded to cover all persons with incomes
below 133 percent of the federal poverty level. If a state chose to participate,
the federal government would pay the total cost for three years and 90 percent
thereafter. The cost of the Affordable Care Act would be met by a variety of taxes,
mostly on upper income people, and ­reduced payments to Medicare providers.
The Congressional Budget Office (CBO) estimated that the ten-year cost of the
program would be $940 billion; another $138 billion would be available for deficit reduction. (The effective dates of various provisions of the act were spread
over several years.)
In January 2010, soon after the holiday recess, an unexpected event occurred. Republican Scott Brown won the special election in Massachusetts to
complete the term of the late Senator Ted Kennedy. This meant the Democrats
no longer had the sixty votes needed to block filibusters. Conservatives gleefully predicted that the health-care reform bill was dead. Many Democrats
­became panicky. What could be done to salvage health-care reform? Some
said a slimmed-down bill should be passed. Others favored passing several
small bills that might lessen Republican opposition.
After some reflection, cooler heads prevailed. President Obama and the
Democratic leadership decided success was too near for them to give up. The
President began to speak strongly in favor of reform and to rebut the ­Republican
arguments against it. He also presented a specific plan for health-care reform,
which was similar to the Senate bill. At a “bipartisan healthcare summit” organized by the White House, it became clear that the Republicans would provide
neither support nor useful ideas. Some simply wanted to “start over.”
The Democrats then developed a strategy to get health-care reform adopted. Fortuitously, the Democrats in early 2009 had passed a budget reconciliation resolution under the Congressional Budget Act. This permitted
budgetary action to be taken by majority vote, thereby eliminating the likelihood of a Republican filibuster. (The Republicans had used this procedure to
pass George W. Bush’s tax cuts.)
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A Concluding Comment
127
It was decided that the House would pass the Senate bill without making
any changes. Representative Stupak at this point got a “second bite of the apple.” The Senate bill, he insisted, did not have sufficiently strong antiabortion
language. He was mollified when President Obama issued an executive order
affirming the Hyde amendment. The House then passed the Senate bill, 219 to
212. Thus, when the President signed it, the Patient Protection and Affordable
Care Act became law.
Following its enactment, the struggle over the Affordable Care Act moved
into the judicial, state government, and administrative arenas. The U.S.
Supreme Court, in National Federation of Independent Business v. Sebelius,
upheld its constitutionality in a 5 to 4 decision, based on government’s power
to tax and spend for the general welfare.82 The struggle to implement the act
is ongoing.
A Concluding Comment
Problem identification, agenda setting, and policy formulation constitute the predecision segment of the policy process in that they do not involve formal decisions on what will become public policy. They are important,
however, because they help determine which issues will be considered, which
will be given further examination, and which will be abandoned. Thus, they
involve political conflict and help set the terms for additional conflict. E. E.
Schattschneider comments:
Political conflict is not like an inter-collegiate debate in which the opponents
agree in advance on the definition of the issues. As a matter of fact, the
definition of the alternatives is the supreme instrument of power. . . . He who
determines what politics is about runs the country, because the definition
of the alternatives is the choice of conflicts, and the choice of conflicts allocates power.83
In actuality, it is often difficult neatly to separate policy formulation from
policy adoption, the subject of the “Policy Adoption” chapter. Analytically,
they are distinct functional activities that occur in the policy process. They do
not, however, “have to be performed by separate individuals at different times
in different institutions.”84 Most often, as the Affordable Care Act case study
demonstrates, those who formulate courses of action will be influenced by the
need to win adoption of their proposals. Some provisions will be included, others excluded, and words and phrasing will be carefully chosen in an attempt
to build support for a proposed policy. Looking further ahead, the formulators
may also be influenced by what they think may happen during the administration of the policy once adopted. Possible reactions may be anticipated and
taken into account in an effort to help ensure that the policy will accomplish
its intended purposes. Such strategic actions help tie together the different
stages of the policy process.
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128
3 Policy Formation: Problems, Agendas, and Formulation
For Further
Exploration
❚ http://www.epi.org/
The Economic Policy Institute is a liberal organization that is committed to promoting public policies that lead to economic growth and foster
economic equality. Reports are provided on such subjects as the standard
of living, the role of government in the economy, foreign trade, and the
nature of public opinion.
❚ http://www.heritage.org/
The Heritage Foundation is a conservative “think tank.” This website has
provided news reports since May of 1997 on a variety of current domestic
and foreign-policy issues.
❚ http://rollcall.com/
This congressional-oriented site contains a link titled “Policy,” in which
members of Congress and other governmental officials discuss current
policy issues facing the nation.
❚ www.csg.org
The official homepage of the Council of State Governments (CSG) provides daily news articles reported in major newspapers on the current
status of state policies. There are also valuable links to other websites
that devote attention to specific state issues.
Test Your
Knowledge
Log on to the student companion website at
login.cengage.com
to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary
flashcards that review chapter concepts and terminology.
Suggested
Readings
Barbara J. Nelson, Making an Issue of Child Abuse (New York: Basic Books,
1984). This is a perceptive and absorbing account of how child abuse
­became a major social-welfare issue in the United States.
Bryan D. Jones and Frank M. Baumgartner, The Politics of Attention (Chicago, IL:
University of Chicago Press, 2005). The dynamic duo have struck again, this
time on the processes by which government sets priorities on problems.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Notes
129
Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in
­American Politics. 2nd ed. (Chicago, IL: University of Chicago Press,
2004). A systematic, empirical examination of how policy issues rise
and decline and the consequences of this for the policy process.
John Gaventa, Power and Powerlessness (Urbana, IL: University of Illinois
Press, 1980). This compelling study of political power in an Appalachian
valley looks at the various dimensions of power, including nondecisions.
John W. Kingdon, Agendas, Alternatives, and Public Policies, 2nd ed. (New
York: HarperCollins, 1995). In this important study of agenda setting, it
is argued that separate streams of problems, policies, and politics sometimes converge to create opportunities to set the policy agenda.
Paul Starr, Remedy and Reaction: The Peculiar American Struggle Over Health
Care Reform (New Haven, CT: Yale University Press, 2011). One of the many
virtues of this book is its treatment of the enactment of the Affordable
Health Care Act.
Roger W. Cobb and Charles D. Elder, Participation in American Politics, 2nd ed.
(Baltimore, MD: Johns Hopkins University Press, 1983). This is a leading
study of agenda setting in American politics.
Thomas A. Birkland, Lessons of Disaster (Washington, DC: Georgetown
­University Press, 2006). An examination of disasters and their consequences for agenda setting and policy change.
Notes
1. Janet A. Weiss, “The Powers of Problem Definition: The Case of Government
­Paperwork,” Policy Sciences, Vol. 22 (January 1989), pp. 99–100.
2. Ibid.
3. A Report of the Commission on Federal Paperwork: Final Summary ­Report
(­Washington, DC: Government Printing Office, October 3, 1977), p. 5.
4. House Committee on Government Operations, Hearings on Implementation of the
Paperwork Reduction Act Amendments of 1983, 98th Cong., 2nd Sess., April 1983,
pp. 27–28.
5. Congressional Quarterly Weekly Report, Vol. 53 (April 8, 1995), p. 1205.
6. The New York Times, July 13, 2009, p. A13.
7. See John Dewey, The Public and Its Problems (Denver, CO: Swallow, 1927), pp. 12, 15,
and 16.
8. For an extended discussion of policy problems, see David A. Rochefort and
Roger W. Cobb, eds., The Politics of Problem Definition: Shaping the Policy Agenda
(Lawrence, KS: University Press of Kansas, 1994).
9. Jeffrey Toobin, “Casting Votes,” The New Yorker, January 14, 2013, pp. 17–18.
10. Aaron Wildavsky, Speaking Truth to Power (Boston, MA: Little, Brown, 1979), p. 42.
11. George C. Edwards III and Ira Sharkansky, The Policy Predicament (San Francisco:
W. H. Freeman, 1978), p. 90.
12. David G. Smith, “Pragmatism and the Group Theory of Politics,” American
­Political Science Review, LVIII (September 1964), pp. 607–610.
13. Murray Edleman, Constructing the Political Spectacle (Chicago, IL: University of
Chicago Press, 1988), Chap. 2.
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130
3 Policy Formation: Problems, Agendas, and Formulation
14. See Barbara J. Nelson, Making an Issue of Child Abuse (Chicago, IL: University of
Chicago Press, 1984); and Elizabeth Pleck, Domestic Tyranny (New York: ­Oxford
University Press, 1987).
15. Robert A. Katzmann, Institutional Disability (Washington, DC: Brookings
­Institution, 1986).
16. General Accounting Office, Homeless Mentally Ill: Problems and Options in Estimating Numbers and Trends (Washington, DC, 1988).
17. Charles S. Bullock III and Charles M. Lamb, eds., Implementation of Civil Rights
Policy (Monterey, CA: Brooks/Cole, 1984), Chaps. 2, 3.
18. James Q. Wilson, “How to Teach Better Values in Inner Cities,” Wall Street ­Journal,
May 18, 1992, p. A14.
19. Cf. Layne Hoppe, “Agenda-Setting Strategies: The Case of Pollution Problems.”
Unpublished paper presented at the Annual Meeting of the American Political
­Science Association (September 1970).
20. Robert Eyestone, From Social Issues to Public Policy (New York: Wiley, 1978),
p. 3.
21. George C. Edwards III, Overreach: Leadership in the Obama ­Administration
(­Princeton, NJ: Princeton University Press, 2012), p. 67.
22. Roger W. Cobb and Charles D. Elder, Participation in American Politics: The
­Dynamics of Agenda-Building, 2nd ed. (Baltimore, MD: Johns Hopkins University
Press, 1983), p. 85.
23. John W. Kingdon, Agendas, Alternatives, and Public Policies, 2nd ed. (New York:
HarperCollins, 1995), p. 4.
24. See Jack L. Walker, “Setting the Agenda in the United States Senate: A Theory
of Problem Selection,” British Journal of Political Science, VII (October 1977),
pp. 423–446.
25. The New York Times, February 20, 2002, p. B1.
26. Barbara Sinclair, The Transformation of the U.S. Senate (Baltimore, IL: Johns Hopkins
University Press, 1989), p. 51.
27. Kingdon, op. cit., Chap. 4.
28. Ibid., p. 87.
29. Ibid., p. 165.
30. For yet another view of agenda setting, see Frank R. Baumgartner and Bryan D.
Jones, Agendas and Instability in American Politics (Chicago, IL: University of
­Chicago Press, 1993).
31. David B. Truman, The Governmental Process (New York: Knopf, 1951), p. 30.
32. Paul Light, The President’s Agenda, rev. ed. (Baltimore, MD: Johns Hopkins
­University Press, 1991), Chap. 3. The quotation is on p. 69.
33. George C. Edwards III and Andrew Barrett, “Presidential Agenda Setting in
­Congress,” in Jon R. Bond and Richard Fleisher, eds., Polarized Politics: Congress and
the President in a Partisan Era (Washington, DC: CQ Press, 2000), Chap. 6.
34. John B. Bader, Taking the Initiative: Leadership Agendas in Congress and the
“Contract with America” (Washington, DC: Georgetown University Press, 1996),
Chap. 1.
35. Walker, op. cit., p. 431.
36. Kingdon, op. cit., p. 204.
37. Beth M. Hensikin and Edward I. Sidlow, “The Supreme Court and the Congressional
Agenda-Setting Process.” Unpublished paper presented at the Annual Meeting of the
Midwest Political Science Association (April 1989); and Roy B. Flemming, B. Dan Wood,
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Notes
131
and John Bohte, “Policy Attention in a System of Separated Powers: An Inquiry into
the Dynamics of American Agenda Setting.” Unpublished paper presented at the Annual Meeting of the Midwest Political Science Association (April 1995).
38. For more on the consequences of natural and industrial disasters, see Thomas A.
Birkland, “Focusing Events, Mobilization, and Agenda Setting,” Journal of P
­ ublic
Policy, Vol. 18 (January–April 1998), pp. 53–74.
39. Cf. Cobb and Elder, op. cit., p. 25.
40. Norman Orstein, National Public Radio.
41. The New York Times, April 18, 2013, pp. 1, 15.
42. See Michael Lipsky “Protest as a Political Resource,” American Political S
­ cience
Review, Vol. 67 (December 1968), pp. 1144 –1158.
43. This subject is discussed in fascinating style in W. A. Swanberg, Citizen Hearst
(New York: Scribner’s, 1961), pp. 79–169.
44. Kingdon, op. cit., pp. 95–99.
45. Ibid., pp. 152–160. See, generally, James A. Stimson, Public Opinion in ­America:
Moods, Cycles, and Swings, 2nd ed. (Boulder, CO: Westview Press, 1999).
46. Joseph A. Page and Mary Winn O’Brien, Bitter Wages (New York: Grossman, 1973),
Chap. 7.
47. Those who wish to pursue this topic further should consult the highly informative
study by Cobb and Elder, op. cit.
48. This discussion owes much to Roger W. Cobb and Marc H. Ross, eds., Cultural Strategies of Agenda Denial (Lawrence, KS: University Press of Kansas, 1997), Chap. 2.
49. Peter Bachrach and Morton S. Baratz, Power and Poverty (New York: Oxford
­University Press, 1970), p. 44. See also John Gaventa, Powerlessness: Quiescence and
Change in an Appalachian Valley (Urbana, IL: University of Illinois Press, 1980).
50. E. E. Schattschneider, The Semi-Sovereign People (New York: Holt, Rinehart and
Winston, 1960), p. 71.
51. T. R. Reid, Congressional Odyssey: The Saga of a Senate Bill (San Francisco, CA:
W. H. Freeman, 1980).
52. David Rosner and Gerald Markowitz, Deadly Dust: Silicosis and the Politics of
­Occupational Disease in Twentieth-Century America (Princeton, NJ: Princeton
­University Press, 1991). Chapter VI is titled “Last Gasp: The Death of the Silicosis
Issue.” The quotation is on p. 179.
53. Anthony Downs, “Up and Down with Ecology: The Issue-Attention Cycle,” Public
Interest, XXXII (Summer 1972), pp. 38–50.
54. Duane Lockard, Coal: A Memoir and Critique (Charlottesville, VA: University Press
of Virginia, 1998), Chap. 4.
55. William Graebner, Coal Mining Safety in the Progressive Period (Lexington, KY:
­University of Kentucky Press, 1976). Also, John Bartlow Martin, “The Beast in
Centralia No. 5: A Mine Disaster No One Stopped,” Harpers Magazine Vol. 196
(March 1948), pp. 193–220.
56. Daniel J. Curran, Dead Laws for Dead Men: The Politics of Federal Coal Mine Health
and Safety Legislation (Pittsburgh, PA: University of Pittsburgh Press, 1993),
Chap. 5.
57. The New York Times, May 8, 1973, p. 21.
58. Laurence E. Lynn Jr., Managing Public Policy (Boston, MA: Little, Brown, 1987),
pp. 254–256.
59. The New York Times, March 12, 1987, p. 11; Wall Street Journal, June 1, 1987,
pp. 1, 10.
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132
3 Policy Formation: Problems, Agendas, and Formulation
60. David Maraniss and Michael Weisskopf, “OSHAs Enemies Find Themselves in
High Places,” The Washington Post, July 24, 1995, pp. A8–A9.
61. CQ Almanac 2006 (Washington, DC: Congressional Quarterly, Inc., 2007),
pp. 18-4 –18-5.
62. See Phillip Shabecoff, A Fierce Green Fire: The American Environmental Movement
(New York: HarperCollins, 1993), pp. 106–111.
63. J. Clarence Davies, The Politics of Pollution, 2nd ed. (Indianapolis, IN:
­Bobbs-Merrill, 1975), p. 7. This discussion relies considerably on Davies.
64. Ibid., pp. 8–9.
65. Walter A. Rosenbaum, Environmental Politics and Policy, 5th ed. ­(Washington, DC:
CQ Press, 2005), p. 39.
66. Helen Epstein, “Lead Poisoning: The Ignored Scandal,” New York Review of Books,
Vol. XL (March 21, 2013), pp. 30–32. This is a review of Gerald ­Markowitz and
David Rosner, Lead Wars: The Politics of Science and the Fate of America’s Children
(Berkeley, CA: University of California Press/Milbank Memorial Fund, 2013).
67. Quoted in Richard E. Neustadt, Presidential Power (New York: Wiley, 1960), p. 102.
68. Francis E. Rourke and Paul R. Schulman, “Adhocracy in Policy Development.”
­Unpublished paper presented at the Annual Meeting of the American Political
­Science Association (September 1988).
69. Congressional Quarterly Weekly Report, Vol. 46 (February 6, 1988), pp. 243–245.
70. Emmette S. Redford and Richard T. McCulley White House Operations: The
­Johnson Presidency (Austin, TX: University of Texas Press, 1986), Chap. 5.
71. Richard E. Cohen, Washington at Work: Backrooms and Clean Air, 2nd ed.
(­Boston, MA: Allyn and Bacon, 1995), Chap. 11.
72. Robert Pear, “It Should Be Called the Grossman Health Care Bill,” The New York
Times, November 26, 1993, p. A20; and Cohen, op. cit.
73. Gilbert Y. Steiner and Samuel K. Gove, Legislative Politics in Illinois (Urbana, IL:
University of Illinois Press, 1960), p. 52. Also Diane Blair, Arkansas Politics and
Government (Lincoln, NE: University of Nebraska Press, 1988), Chap. 9.
74. Quoted in The New York Times, November 18, 1991, p. C10.
75. Note, “Why Learned Hand Would Never Consult Legislative History Today,”
­Harvard Law Review, CV (April 1992), p. 1005.
76. Robert A. Katzman, Courts and Congress (Washington, DC: Brookings ­Institution,
1997), p. 57.
77. This case study draws mostly on CQ Almanac 2010 (Washington, DC: CQ-Roll Call,
2011); Lawrence R. Jacobs and Theda Skocpol, Health Care Reform and American
Politics, rev. ed. (New York: Oxford University Press, 2012); and Paul Starr, Remedy
and Reaction (New Haven, CT: Yale University Press, 2011).
78. T. R. Reid, The Healing of America (New York: Penguin Press, 2009).
79. Starr, op. cit., p. 123.
80. Jacobs and Skocpol, op. cit., p. 88.
81. CQ Almanac, op. cit., pp. 9-6–9-13.
82. National Federation of Independent Business v. Sebelius (U.S. Supreme Court) 2012.
83. Schattschneider, op. cit., p. 68. See also Sarah B. Pralle, Branching Qut. ­Digging In:
Environmental Advocacy and Agenda Setting (Washington, DC: Georgetown University Press, 2006).
84. Charles O. Jones, An Introduction to the Study of Public Policy (Belmont, CA:
­Wadsworth, 1970), p. 53.
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4
Policy Adoption
A
policy decision involves action by some official person or body to adopt,
modify, or reject a preferred policy alternative. In positive fashion, it
takes such forms as the enactment of legislation or the issuance of an executive order. It is helpful to recall the distinction made in the chapter titled “The
Study of Public Policy” between policy decisions, which significantly affect the
content of public policy, and routine decisions, which involve the day-to-day
application of policy. Furthermore, a policy decision is usually the culmination
of many decisions, some routine and some not so routine, made during the
operation of the policy process.
What is typically involved at the policy-adoption stage is not selection
from among a number of full-blown policy alternatives but rather action on
a ­preferred policy alternative for which the proponents of action think they
can win approval, even though it does not provide all they might like. As the
­formulation process moves toward the decision stage, some provisions will
be rejected, others accepted, and still others modified; differences will be
­narrowed; bargains will be struck, until ultimately, in some instances, the final
policy decision will be only a formality. In other instances, the question may be
in doubt until the votes are counted or the decision is announced.
Although private individuals and organizations also participate in making policy decisions, the formal authority to decide rests with public officials:
legislators, executives, administrators, and judges. Through the adoption
process policies acquire the “weight of public authority.” In democracies, the
task of making policy decisions is most closely identified with the legislature,
which is designed to represent the interests of the populace. One frequently
hears that a majority of the legislature represents a majority of the people.
­Whatever its ­accuracy in describing reality, such a contention does accord with
our notion that in a democracy the people should rule, at least through their
­representatives. Policy decisions made by the legislature are usually ­accepted
as legitimate, as being made in the proper way and hence binding on all.
Generally, decisions made by public officials are regarded as legitimate if the
133
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134
4 Policy Adoption
officials have legal authority to act and if they meet accepted procedural and
substantive standards in taking action.
Legitimacy is a difficult concept to define. It is not the same as legality
although legality can contribute to belief in legitimacy which focuses ­people’s
attention on the rightness or appropriateness of government and its actions.
For policymaking, legitimacy is affected both by how something is done (i.e.,
whether proper procedures are used) and by what is being done. Some ­actions
of government, even when within the legal or constitutional ­a uthority of
­officials, may not be regarded as legitimate because they depart too far from
prevailing notions of what is acceptable. Thus, many Americans never accepted
the legitimacy of the Vietnam War. Other people do not accept the ­legitimacy
of a constitutional right to privacy as a barrier to some governmental actions, such as the prohibition of abortions. On the other hand, even though
the legislative veto was held unconstitutional in 1983 by the Supreme Court, it
continues to be regarded as a necessary and appropriate—that is, legitimate—
arrangement by Congress and the executive. Legislative veto arrangements
have been incorporated into legislation hundreds of times since 1983.1
Constitutionality is not always a sine qua non for legitimacy. Legitimacy
is an important factor in developing public support and acceptance for both
government and the policies that it adopts. Public officials must be cognizant
of this importance. When legitimacy erodes, governments and their policies
diminish in effectiveness.
Political and social scientists have produced a large body of theoretical and
empirical literature on political decision-making. In this literature, the reader
will discover there are many disagreements and divergences over such matters
as how best to study decision-making, how decisions are actually made, and
even over what constitutes a decision. No attempt is made here to resolve any
of these controversies. Rather, some topics are discussed that should assist the
reader in getting a handle on political decision-making. These include some
decision-making theories, criteria, and styles; the process of majority building
(or decision-making) in Congress; and presidential decision-making.
As the discussion indicates, many forces, pressures, and constraints may
play upon political decision-makers. They will likely try to cope by developing
routines or procedures that simplify the making of choices. Incrementalism
and decision rules are two illustrations of such behavior. In many instances,
however, there are no easy routes to a good decision.
Theories of Decision-Making
Decision-making, as stated in the chapter “The Study of Public ­Policy,”
involves making a choice from among alternatives. Many highly formal,
quantitative models of decision-making exist, including linear programming,
game theory, and the Monte Carlo method. These are often grouped under the
­rubric “decision sciences.” Some very informal and nonrational ways to make
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Theories of Decision-Making
135
decisions include palmistry, dart throwing, coin flipping, and reflection on
one’s belly button. None of these genres is reviewed here.
People also make decisions on the basis of intuition.2 President George W.
Bush said he made some decisions on “gut instinct.” A nonrational process,
intuition relies on “hunches,” a “feel for the situation,” and other improvised
premises. Lower-level administrative officials, for example, often need to act
at least partly on the basis of intuition because of the lack of firm standards
or rules. The judgments or decisions yielded by intuition are sometimes right,
sometimes wrong, and sometimes even egregious. This, of course, is also true
for other, more formalized modes of decision-making.
Three theories of decision-making that emphasize the procedure and
­intellectual activities involved in making a decision are presented here: the
rational-comprehensive theory, the incremental theory, and mixed scanning
theory. To the extent that these theories may describe how decisions are actually
made by individuals and groups, they are empirical. Viewed as statements of how
decisions should be made, they become normative. It is not always easy to separate
these two qualities in decision-making theories and studies, as we will discover.
Perhaps the best-known theory of decision-making is the
­rational-comprehensive theory. It draws considerably from
the economist’s view of how a rational person would make
decisions as well as from theories of rational decisionmaking developed by mathematicians, psychologists, and other social scientists.
It should not be confused with rational-choice theory. Whereas rational-choice
theory is used for developing deductive models of self-interested decision-makers,
the rational-comprehensive theory specifies the procedures involved in making
well-considered rational decisions that maximize the attainment of goals,
whether personal or organizational.
The rational-comprehensive theory usually includes these elements:
The RationalComprehensive
Theory
1. The decision-maker is confronted with a problem that can be separated
from other problems or at least considered meaningfully in comparison
with them.
2. The goals, values, or objectives that guide the decision-maker are known
and can be clarified and ranked according to their importance.
3. The various alternatives for dealing with the problem are examined.
4. The consequences (costs and benefits, advantages and disadvantages) that
would follow from selecting each alternative are investigated.
5. Each alternative, and its attendant consequences, is then compared with
the other alternatives.
6. The decision-maker will choose the alternative, and its consequences, that
maximizes attainment of his or her goals, values, or objectives.
The result of this procedure is a rational decision—that is, one that most
e­ ffectively achieves a given end. In short, it optimizes; it is the best ­possible
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136
4 Policy Adoption
­ ecision. Rational decisions may make either large and basic or limited
d
changes in public policies.
The rational-comprehensive theory has received substantial criticism.
­Professor Charles Lindblom contends that decision-makers usually are not faced
with concrete, clearly defined problems. Rather, he says that they first have to
identify and formulate the problems on which they make decisions. For ­example,
when prices are rising rapidly and people are saying, “We must do something
about the problem of inflation,” what is the problem? Excessive ­demand?
­Inadequate production of goods and services? Administered prices controlled by
powerful corporations and unions? Inflationary psychology? Some combination
of these? One does not, willy-nilly, attack inflation. Instead, the causes of inflation must be dealt with, and these may be difficult to determine. Defining the
problem is, in short, often a challenging task for the decision-maker.
A second criticism holds that rational-comprehensive theory is unrealistic
in the intellectual demands it makes on the decision-maker. It assumes that
he or she will have enough information on the alternatives for dealing with a
problem, will be able to predict their consequences with some accuracy, and
will be capable of making correct cost–benefit comparisons of the alternatives.
A moment’s reflection on the informational and intellectual resources
needed for acting rationally on the problem of inflation indicates the barriers
to rational action implied in these assumptions: lack of time, difficulty in collecting information and predicting the future, and complexity of calculations.
Even use of that modern miracle, the computer, and sophisticated economic
models replete with equations cannot fully alleviate these problems, as economists continually demonstrate. There is no need to overload the arguments,
as some do, by talking of the need to consider all possible alternatives. Even
a rational-comprehensive decision-maker should be permitted to ignore the
absurd and the far-fetched.
The value aspect of the rational-comprehensive theory also draws some
criticism. It is contended that in actuality the public decision-maker is ­usually
confronted with a situation of value conflict rather than value agreement,
and that the conflicting values do not permit easy comparison or weighing.
­Moreover, the decision-maker might confuse personal values with those of the
public. In addition, the rationalistic assumption that facts and values can be
readily separated does not hold up in practice. Some may support a dam on a
stream as demonstrably necessary to control flooding, and others may ­oppose
it, preferring a free-flowing stream for aesthetic and ecological reasons.
­Recourse to the “facts,” even lots of them, will not resolve such controversies.
Yet another problem is that of “sunk costs.” Previous decisions and
­commitments, investments in existing policies and programs, may foreclose
or severely complicate the consideration of many alternatives. The Clinton
­administration’s formulation of a national health-care program was restricted
by the nation’s extensive reliance upon employer-sponsored health insurance.
So too was that of the Obama administration. An airport, once constructed,
cannot be easily moved to the other side of town. Even if a project is only
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Theories of Decision-Making
137
partially constructed, pressure will be strong to complete the project rather
than “waste” the money already invested by relocating the airport.
Finally, the rational-comprehensive model assumes the existence of a
­unitary decision-maker. This condition cannot be met by legislative bodies,
plural-headed agencies, multiple-member courts, or nation-states in international relations.
The Incremental The incremental theory of decision-making is presented as
a decision theory that avoids many of the pitfalls of the
Theory
r­ ational-comprehensive theory and, at the same time, is
more descriptive of the way in which public officials
­actually make decisions.3 Certainly there is little evidence to indicate that the
members of Congress utilize anything akin to the rational-comprehensive
model in enacting legislation. Incremental decisions involve limited changes
or additions to existing policies, such as a small-percentage increase in an
agency’s budget or a modest tightening of eligibility requirements for student
loans. Incrementalism (Lindblom refers to it as “disjointed incrementalism”)
can be summarized in the following manner:
1. The selection of goals or objectives and the empirical analysis of the
action needed to attain them are closely intertwined with, rather than
distinct from, one another.
2. The decision-maker considers only a few of the alternatives for dealing
with a problem, which will differ only incrementally (i.e., marginally)
from existing policies.
3. For each alternative, only a limited number of “important” consequences
are evaluated.
4. The problem confronting the decision-maker is continually modified.
Incrementalism allows for countless ends-means and means-ends
adjustments that help make the problem more manageable.
5. There is no single decision or “right” solution for a problem. The test of
a good decision is that various analysts find themselves agreeing on it,
without agreeing that the decision is the most appropriate or optimum
means to an agreed objective.
6. Incremental decision-making is essentially remedial and is geared more
to ameliorating present, concrete social imperfections than to promoting
major future social goals.4
Lindblom contends that incrementalism is the typical decision-making
­ rocedure in pluralist societies such as the United States. Decisions and
p
­policies are the product of give and take and mutual consent among ­numerous
participants (“partisans”) in the decision process. Incrementalism is ­politically
expedient because it is easier to reach agreement when the matters in dispute
among various groups are only limited modifications of existing programs
rather than policy issues of great magnitude or of an “all-or-nothing” character.
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138
4 Policy Adoption
Because decision-makers operate under conditions of uncertainty about the
future consequences of their actions, incremental decisions reduce the risks
and costs of uncertainty.
Incrementalism is seen as realistic because it recognizes that
­decision-makers lack the time, intelligence, and other resources needed to
­e ngage in comprehensive analysis of all alternative solutions to existing
­problems. Moreover, people are essentially pragmatic, seeking not always
the single best way to deal with a problem but, more modestly, “something
that will work.” Incrementalism, in short, utilizes limited analysis to yield
­limited, practical, and acceptable decisions. A sequence of incremental decisions, ­however, may produce a fundamental change in public policy. Myriad
­incremental decisions have made Social Security a vastly different program
from the one Congress first authorized in 1935.
Various criticisms have been directed at incrementalism. One is that it is
too conservative, too focused on the current order; hence, it is a barrier to
innovation, which is often necessary for effective public policies. Another is
that in crisis situations (such as the American invasion of Iraq) or when major
changes are made in policy (for instance, the 2001 tax cut), incrementalism
provides no guidelines for handling the tasks of decision. Third, geared as it
is to past actions and existing programs, and to limited changes in them, incrementalism may discourage the search for or use of other readily available
alternatives. Fourth, incrementalism does not eliminate the need for theory in
decision-making, as some of its more enthusiastic advocates contend. Unless
changes in policy (increments) are to be made simply at random or arbitrarily,
some theory (of causation, relationships, etc.) is needed to guide the action
and to indicate the relevance and likely effects of proposed changes.5
Notwithstanding reservations of these sorts, incrementalism has become
a form of conventional wisdom. Statements to the effect that policymaking
in the United States is incremental are common. National budgeting during
the three decades following World War II epitomized incrementalism. (See the
“Budgeting and Public Policy” chapter.)
Analytical techniques such as cost–benefit analysis (see the chapter titled “Policy Impact, Evaluation, and Change”), risk analysis, and the
­planning-programming-budgeting system (PPBS), which was in vogue during the
Johnson administration, are intended to move decision-making away from incrementalism and toward the rational-comprehensive model. The impact of these
techniques will depend upon whether the information they produce is sound and
impartial and on the disposition of decision-makers to rely upon them.
Mixed Scanning
ociologist Amitai Etzioni believes that both the rationalS
comprehensive theory and incremental theory have
shortcomings. For instance, he says that decisions made by incrementalists
will reflect the interests of the most powerful and organized groups in society
while neglecting the interests of the underprivileged and politically unorganized. Great or fundamental decisions, a declaration of war, for example, do
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Theories of Decision-Making
139
not come within the ambit of incrementalism. Although limited in number,
these fundamental decisions are highly significant and often provide the context for numerous incremental decisions.6
Etzioni presents mixed scanning as an approach to decision-making that
draws on both fundamental and incremental decisions and provides for “highorder, fundamental policy-making processes which set basic directions and . . .
incremental processes which prepare for fundamental decisions and work them
out after they have been reached.” He offers the following illustration:
Assume we are about to set up a worldwide weather observation system using weather satellites. The rationalistic approach would seek an exhaustive
survey of weather conditions by using cameras capable of detailed observations and by scheduling reviews of the entire sky as often as possible. This
would yield an avalanche of details, costly to analyze and likely to overwhelm our action capacities (e.g., “seeding” cloud formations that could
develop into hurricanes or bring rain to arid areas). Incrementalism would
focus on those areas in which similar patterns developed in the recent past
and, perhaps, on a few nearby regions; it would thus ignore all formations
which might deserve attention if they arose in unexpected areas.
A mixed-scanning strategy would include elements of both approaches
by employing two cameras: a broad-angle camera that would cover all parts
of the sky but not in great detail, and a second one which would zero in on
those areas revealed by the first camera to require a more in-depth examination. While mixed-scanning might miss areas in which only a detailed camera could reveal trouble, it is less likely than incrementalism to miss obvious
trouble spots in unfamiliar areas.7
Mixed scanning enables decision-makers to utilize both the rationalcomprehensive and incremental theories, but in different situations. In some
instances, incrementalism will be adequate; in others, a more thorough
approach along rational-comprehensive lines will be needed. Mixed scanning
also takes into account differing capacities of decision-makers. The greater
their capacity to mobilize power to implement their decisions, the more scanning
they can realistically engage in; the more encompassing the scanning, the
more effective the decision-making.
Professors David Rosenbloom and Robert Kravchuk state that something
akin to mixed scanning is used by the national government from time to time.
The Council of Economic Advisers (CEA) analyzes the national economy; alerts
the president to failures, threats of failure, or problems; and recommends policies for economic growth and stability. The CEA thus looks at both the overall
operation of the economic and particular trouble spots. Again, agencies make
five- or ten-year budget projections when attempting to realistically appraise
where they are heading. These projections can serve as a check on administrative “drift” because of incremental budgeting.8 Mixed scanning is thus an
attempt to combine the use of incrementalism and rationalism, drawing upon
strengths while avoiding shortcomings.
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140
4 Policy Adoption
Decision Criteria
Decision-making can be studied as either an individual or a ­collective
process. In the first instance, the focus is on the criteria individual’s use in
making choices. In the latter, the focus is the processes by which majorities
are built, or by which approval is otherwise gained, for specific decisions.
­Individual choices, of course, are usually made with some reference to how
others involved in the decisional situation are likely to respond.
An individual may be subject to various influencing factors when deciding how to vote on or resolve a policy question. Which of these concerns is
most crucial to the choice is often hard to specify. Public officials frequently
make statements explaining their decisions in the Congressional Record, constituency newsletters, speeches, press conferences, court opinions, memoirs,
and elsewhere. The reasons they give for their decisions may be those that
were ­actually controlling, or they may be those that are thought to be acceptable to the public at large or to important constituents while their actual bases
for choice go unstated. Nonetheless, it is often possible, by careful observation and analysis, to determine which factors were operating in a situation, if
not necessarily to assign them specific weights. A number of criteria that may
­influence policy choice are discussed here. They include values, party affiliation, constituency interests, public opinion, deference, and decision rules. The
concept of the public interest is scrutinized in the following section.
I n considering the broader social and political forces that
impinge on decision-makers, we tend to neglect their own
values (or standards or preferences), which help them decide what is good or
bad, desirable or undesirable. Often these may be difficult to determine and
impossible to isolate. Decision-making persons, however, are not simply pieces
of clay to be molded by others. Rather, their values or ideas may be important
or even determinative in shaping their behavior. Some decision-makers may
come under criticism if they insist too strenuously on the primacy of what they
personally value. Here I comment on five categories of values that may guide
the behavior of decision-makers: organizational, professional, personal, policy,
and ideological.
Values
ORGANIZATIONAL VALUES Decision-makers, especially bureaucrats, may be influenced by organizational values. Those who work for any agency for any extended
period of time, whether the Tennessee Valley Authority, the Social Security
Administration, or the Federal Trade Commission, are likely to become firm
believers in the importance of the agency’s goals and programs. Moreover, organizations may utilize rewards and sanctions to induce their members to accept
and act in accordance with organizationally determined values.9 Consequently,
agency officials’ decisions may reflect such considerations as a desire to see the
agency survive, to increase its budget, to enhance or expand its programs, or to
maintain its power and prerogatives against external assaults. Career officials in
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Decision Criteria
141
the Environmental Protection Agency (EPA), successfully resisted the Reagan
­administration’s attempt to blunt the enforcement of agency programs.
Organizational values sometimes lead to conflict among agencies with
competing or overlapping jurisdictions. The Army Corps of Engineers, the
Bureau of Reclamation, and the Natural Resources Conservation Service (formerly the Soil Conservation Service) have differed over water-resource policies
and projects.10 “Turf” battles of this sort are an understandable, if not laudable,
manifestation of differing organizational values.
The professional values of agency personnel may be
i­ mportant. Professions tend to form distinctive preferences as to how problems should be handled. Professionally trained people carry these preferences
or values with them into organizations, some of which become dominated by
particular professions; two such examples are the prevalence of engineers in
the National Highway Traffic Safety Administration (NHTSA) and industrial
hygienists in the Occupational Safety and Health Administration (OSHA).
OSHA’s ­industrial health and safety rules reflect the industrial hygienist’s
preference for ­engineering or design standards over performance standards.
­Design ­standards specify the use of particular equipment, ventilating systems, and
safety devices and are intended to eliminate hazards. Performance standards,
in contrast, set health or safety goals but leave the methods for attaining these
goals to the company’s discretion.
Economists, preferring market solutions and efficiency, have held sway in
the Federal Trade Commission since the 1980s. Their influence is manifested
in the agency’s disinclination to challenge many large corporate mergers and
unfair trade practices on the grounds that mergers contribute to efficiency and
that the latter were simply forms of intense competition.11
PROFESSIONAL VALUES
Decision-makers may also be guided by their personal ­values,
or by the urge to protect or promote their own physical or financial well-being,
reputation, or historical position. The politician who accepts a bribe to make
a decision, such as the award of a license or contract, obviously has personal
benefit in mind. On a different plane, the president who says he is not going to
be “the first president to lose a war” and then acts accordingly is also manifesting the influence of personal values, such as concern for his place in history.
Personal values are important, but the rational-choice theorists go
much too far when they try to explain officials’ behavior as totally driven by
­self-interest. The location of public buildings is probably better explained by
self-interest than is the adoption of civil-rights policies.
PERSONAL VALUES
Policy values, which also can be called public ideas, are
f­ requently underestimated in their importance.12 Neither the discussion of
values thus far nor cynicism should lead us to assume that ­decision-makers
are driven only by personal, professional, or organizational considerations.
­Decision-makers may well act on the basis of their perceptions of the public
POLICY VALUES
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142
4 Policy Adoption
interest; of what is necessary, proper, or morally correct public policy; or, simply
put, of what is the “right thing” to do. As Professor Gary Orren has remarked:
“Evidence has steadily accumulated that ideas and values are autonomous and
do not merely rationalize action in accordance with self-interest. Often values
arise quite independently of an individual’s life experiences and exert an independent influence on political behavior.”13
Legislators may vote for civil-rights legislation because they believe that it is
morally correct and that equality of opportunity is a desirable policy goal, even
though their votes might entail some political risk. Studies of the ­Supreme Court
indicate that in deciding cases the justices are influenced by policy values.14 Of
course, citizens and officials will differ over what ­constitutes good public policy
on abortion, immigration, care of the mentally disturbed, and other topics.
Finally, we come to ideological values. Ideologies are sets
of coherent or logically related values and beliefs that present simplified pictures of the world and serve as guides to action for believers. For Communists,
Marxist–Leninist ideology has served at least partly as a set of prescriptions for
social and economic change. Although the Soviets sometimes deviated from
this body of beliefs, as in their use of economic incentives to increase production toward the end of the regime, Marxist–Leninist ideology still served
the regime as a means for rationalizing and legitimizing policy actions. In the
twentieth and twenty-first centuries, nationalism—the desire of a nation or
people for autonomy and the deep regard for their own characteristics, needs,
and problems—has been a major factor shaping the actions of many nations,
especially developing countries in Asia, Africa, and the Middle East.
During the Reagan years, conservative ideology, and notably its intense
variant known as “movement conservatism,” influenced the actions of many
Reagan administration members. Devout believers in individualism, minimal
government, and the free market, they strongly supported deregulation, privatization, and reduced governmental spending. For movement conservatives, that
ideology was both their beacon and their shepherd. For some, it was more important to be right—to be true to their ideology—than to win on some legislative
issue by compromising their principles. To them, “pragmatist” was a pejorative
label, the American cultural preference for practicality notwithstanding. Quite
a few members of the Republican House members reside in this category.
Arrayed against conservatives are modern liberals (or progressives). Their
ideology calls for vigorous use of the government’s powers to serve the interests
of the poor, working people, minorities, and the disadvantaged generally.15 They
are defenders of civil rights and liberties, protectors of the environment, and
proponents of consumer interests. “The regulatory state and the welfare state
are two pillars of modern liberal ideology.” On the other hand, they are skeptical about the maintenance of a large defense establishment in the post–Cold
War era. Although liberals are less sure of their policy preferences than they
once were, on the whole they are optimistic concerning their ability to use government to improve the human condition and promote an egalitarian society.
IDEOLOGICAL VALUES
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143
Decision Criteria
Very few people, we should note, consistently or rigidly conform to the precepts of a particular ideology. Thus, conservatives, though they generally favor
minimal government, often support regulation of personal behavior.
Party loyalty is an important decision-making criterion for
most members of Congress, even though it is difficult to
separate that loyalty from such other influences as party
leadership pressures, ideological commitments, and constituency interests.
Party affiliation is the best single predictor as to how members of Congress will
vote on legislative issues. If one knows a member’s party affiliation and the party’s position on issues, and then uses party affiliation as the basis for predicting
votes, he or she will probably be correct more often than when using any other
indicator. In recent years, the average legislator has voted with the majority of
his or her party about three-fourths of the time.16 Party-unity (or party-line)
voting, in which a majority of one party opposes a majority of the other party,
has also been increasing. In the 1990s, party-unity votes occurred on over half
of the roll-call votes in both the House and the Senate17 (See Figure 4.1).
Contributing to an increase in voting along party lines has been a ­decrease in
the appearance of the conservative coalition, an alliance between ­Republicans
and conservative southern Democrats that formed on social ­welfare, labor, and
some other issues. Electoral changes in the South have led to the replacement
of most conservative Democrats by Republicans. The remaining southern
Democrats, being mostly black, vote with their other Democratic colleagues.
There are a number of “Blue Dog” or “moderate” Democrats in both houses
Political-Party
Affiliation
Figure 4.1
Party-Line Votes in Congress
100
90
80
House
Percentage
70
Senate
60
50
40
30
20
10
01
4
00
6
–2
13
20
99
8
–2
05
20
99
0
–1
97
19
98
2
–1
89
19
97
4
–1
81
19
96
6
–1
73
19
95
8
–1
65
19
95
0
–1
57
19
94
2
–1
–1
49
19
93
4
41
19
92
6
–1
33
19
91
8
–1
25
19
91
0
–1
17
19
90
2
–1
09
19
89
4
–1
01
19
88
6
–1
–1
93
18
–1
18
77
18
85
87
8
0
Year
Source: From Jon R. Bond and Kevin B. Smith, Analyzing American Democracy (New York:
­Routledge, 2013), p. 260.
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144
4 Policy Adoption
of congress. In Republican ranks, the number of “liberals” and moderates has
essentially vanished.18 The inclination of the parties in Congress to engage in
party-based conflict has also increased as they have become more polarized.
This has been highly evident in the House in recent years.
Strong-party voting, in which 90 percent or more of one party is aligned
against 90 percent or more of the other party, customarily occurs on only a
small percentage of roll-call votes in either the House or the Senate. This type
of party voting reached a peak in the nineteenth century during the McKinley
era, when approximately 50 percent of the House votes met this standard. 19
The strong-party leadership and control that yielded such voting proved to be
unacceptable to both members of Congress and the public, however, and were
eliminated by congressional reforms early in the twentieth century.
In parliamentary systems, such as the British House of Commons, voting
along strict party lines is the order of the day. In Commons most votes meet
the “90 percent versus 90 percent” strong-party vote criterion. On many government proposals, formal votes (divisions) are not taken because they are
unnecessary. Although dissenting votes to party positions have increased in
recent years, they usually involve only a handful of a party’s members and customarily do not occur on crucial issues.20
Party loyalties or attachments in Congress have varied in importance
among issue areas. Party conflict has arisen most consistently on such ­topics
as business regulation, labor–management relations, social welfare, tax­
ation, and agricultural income supports. Democrats have been more inclined,
for example, to support new welfare programs—such as family leave and
child care—and expansion of or increased funding for existing ones—such as
­Medicare and food stamps—than have Republicans. Again, Democrats have
been stronger supporters of air and water pollution-control regulations than
have Republicans. Tax cuts, balanced budgets, military spending, and something called “small government” are strong Republican preferences.
In some issue areas, however, it is difficult to delineate distinct and persistent party differences. Public works, veterans’ benefits, medical research,
and international trade are illustrative. Members of both parties, until recently,
have displayed a proclivity for securing pork-barrel projects (research facilities, public buildings, dams, highway “demonstration” projects), that is, those
that are of particular benefit to their states and districts.
Party affiliation also influences the decisions of federal judges. ­Republican
presidents typically appoint conservative Republicans to judgeships; ­Democratic
presidents manifest a preference for moderate to liberal Democrats. Once appointed, federal judges do not entirely shed their partisan raiment. Based on
their examination of tens of thousands of federal district court opinions issued
by more than 1,500 judges between 1933 and 1987, Professors Robert A. Carp
and Claude K. Rowland found that 48 percent of the decisions of Democratic
judges were liberal compared with 39 percent of Republican jurists’ decisions.
In cases involving civil rights and liberties, labor relations, and economic regulation, Democratic judges were more likely to take liberal positions, such as
making pro-labor decisions.21
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Decision Criteria
145
Constituency
Interests
A bit of conventional wisdom in Congress holds that when
party interests and state or district constituency interests
conflict on some issue, members should “vote their constituency.” It is, after all, the voters at home who hold the ultimate power to hire
and fire. In looking after the interests of constituents, the representative may
act as either a delegate, carrying out their actual or perceived instructions, or a
trustee, exercising his or her best judgment in their behalf, when voting on
policy questions.22 Of course, the representative may try to combine these two
styles, acting as a delegate on some issues and as a trustee on others, thus becoming a “politico.”
In some instances, constituents’ interests will be rather clear and strongly
held, and representatives will act contrary to them at their own peril. In the past,
southern members of Congress were well aware of the strong opposition among
their white constituents to civil-rights legislation and voted accordingly. A legislator from a strong labor district will likewise probably have little doubt about
the constituents’ interests on minimum-wage and right-to-work legislation.
On a great many issues, however, representatives will be hard put to determine what their constituents want. Large portions of the electorate have little
knowledge of most issues. How do representatives measure which way the
wind is blowing from their districts if no air currents are moving? Legislators
must then make a decision drawing on their own values or other criteria, such
as recommendations from party leaders or the chief executive. They may also
solicit opinions from some of their constituents or listen to the interested few.
Nonelected public officials, such as administrators, may also act as representatives. Agencies often have well-developed relationships with interest
groups and strive to represent their interests in forming and administering
policy. The Department of Agriculture is especially responsive to the interests
of commercial farmers, and the Federal Maritime Commission has viewed
itself as the representative of international shipping interests in the national
administrative system. The two agencies’ decisions and actions have reflected
the interests of their clientele. Some commentators have contended that administrative agencies may in fact be more representative of particular interests
in society than are elected officials.23 Whatever the validity of this contention,
it is clear that legislators are not the only officials influenced by the need or
desire to act representatively in making decisions.
Public opinion can be defined operationally as those public
perspectives or viewpoints on policy issues that public officials consider or take into account in making decisions. Public opinion may be
expressed in many ways—letters to the editor and to public officials, meetings,
public demonstrations, editorials, election results, legislators meeting with
constituents, plebiscites, and radio talk shows. Most commonly, however,
­public opinion is identified with the findings of opinion surveys that poll a representative sample of the population on political issues. Despite their increasing numbers and sophistication, opinion surveys have various limitations.
Notably, they do not provide much insight into either the depth or intensity of
Public Opinion
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146
4 Policy Adoption
people’s opinions. Small focus groups are sometimes used to gauge the depth
or intensity of feelings on some issues.
Moreover, although most people are quite willing to express their opinions
to pollsters, typically it is unclear how much information or understanding
underlies their perspectives. Consider this example. In 1995, a University of
Maryland research organization released an opinion survey that found that
75 percent of the respondents thought the national government spent too much
money on foreign-aid programs. Asked how much of the national budget went
for foreign aid, the median response was 15 percent, and the average response
was 18 percent. In actuality, foreign aid accounted for less than 1 percent of
the budget (about $14 billion). To questions about how much foreign spending would be “appropriate” and how much would be “too little,” the median
responses were 5 percent and 3 percent, respectively.24 The lack of respondent
information indicated by this poll suggests that the “don’t know” should have
been the standard response. Overestimation of foreign aid spending continues
to prevail.
Economist Alan Blinder contends that the Troubled Assets Relief Program
(TARP), enacted by Congress in 2008, “may be among the most successful—
but least understood—economic policy innovations in our nation’s history.”
A Pew poll in early 2012 found that only 39 percent of those polled agreed that
the loan program to prevent a financial crisis was the right thing for government to do. Fifty-two percent disagreed. Asked then how much of the money
had been paid back, only 15 percent gave the right answer—either “all of it” or
“most of it.” Seventy-two percent said “only some of it” or “none of it.” TARP
continues to be negatively viewed. A great many people continue to believe the
money was given to the banks.25
Public opinion is also subject to manipulation by public officials, as through
the management of the news—that is, the careful control of information provided to media representatives. Reagan administration officials, for ­instance,
used a “theme of the day” format to influence the view of the president and
his policies presented through the media to the public. Moreover, “the historical record indicates that government officials often mislead and sometimes
lie, particularly in foreign affairs, where government control of information is
great. . . . This tendency is not unique to the United States.”26
Notwithstanding their limitations, opinion surveys draw much attention
because of their frequency, regularity, and accessibility, and the seeming precision of the numbers they yield. Political scientists devote much time and effort
to studying the formation, content, and change of public opinion on political
issues. The more philosophically inclined consider the role of public opinion
in the governmental process. Our subject is the effect of public opinion on the
actions of policy-makers. Are the policy-makers’ choices shaped or determined
by public opinion? Does public opinion serve as a criterion for decision? It is
advisable to proceed tentatively in answering such questions, bearing in mind
Professor V. O. Key’s comment that “to speak with precision of public opinion
is a task not unlike coming to grips with the Holy Ghost.”27
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Decision Criteria
147
A useful way to approach the problem of how public opinion ­influences
­ olicymaking is to distinguish between decisions that shape the broad
p
­direction of policy and the day-to-day, often routine decisions on specific aspects of policy. Public opinion is probably not a significant criterion for decisions in the second category. Drawing on Key again, “Many, if not most, policy
­decisions by legislatures and by other authorities exercising broad discretion
are made under circumstances in which extremely small proportions of the
general public have any awareness of the particular issue, much less any understanding of the consequences of the decision.”28 The legislator deciding
how to vote on a specific tax amendment or a public-works bill will probably
be unaffected by public opinion in any direct sense. Of course, he or she may
try to anticipate the public’s reaction to such votes, but this tactic will leave
substantial latitude to the legislator because of the shortage of public awareness previously mentioned.
Nonetheless, the general boundaries and direction of public policy may be
shaped by public opinion. Given public attitudes, such actions as nationalizing
the airline industry, repealing the Clean Air Act, or making a major cutback in
the Social Security program appear highly unlikely. Conversely, officials may
come to believe that public opinion demands some kind of policy action, as
with education reform in 2001 and gun control in 2013. These were generalized rather than specific demands, which left to Congress much discretion on
details.
In foreign policy, public opinion appears to accord wide latitude to executive officials, as the conduct of American intervention in Vietnam during
the 1960s clearly indicates. Ultimately, however, growing public opposition
to the Vietnam War apparently contributed to President Johnson’s decision
not to run for reelection in 1968 and to begin to “wind down the war and
withdraw.”29Conversely, public opinion was strongly supportive of the George
Bush administration’s campaign to drive the Iraqis out of Kuwait.30
Public opinion sometimes has a permissive quality in that action on some
topic is favored but not required. For years, public-opinion polls have indicated that a strong majority of the American population supports stronger
gun-control legislation, such as requiring a police permit for the purchase of
a handgun.31 However, restrictive legislation has been scarce because of the
strong, well-financed opposition of the National Rifle Association. In instances
like this, an intense minority may prevail over a much larger but less committed majority. This is one of the dilemmas of democracy.
To conclude, policy-makers do not seem to be unaffected in making ­decisions
by public opinion, especially if it trends strongly on some matter. The relationship between public opinion and the actions of elected officials is ­neither as
simple nor as direct as posited by democratic theory. As ­Professor Larry Bartels
remarks: “In practice . . . elected officials have a great deal of ­political leeway.
This fact is strikingly illustrated by the behavior of ­Democratic and Republican
Senators from the same state, who routinely pursue vastly ­different policies while
‘representing’ precisely the same constituents.”32 This is not to say, however, that
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148
4 Policy Adoption
elected officials can totally ignore public opinion, but it is not the compelling
influence that public opinion studies sometimes appear to indicate.
Officials confronted with the task of making a decision may
decide how to act by deferring to the judgment of others.
The “others” to whom deference is given may or may not be hierarchic
­superiors. Administrative officials often do make decisions in accordance with
directives from department heads or chief executives. That is how we expect
them to act, especially when the directives of superiors are clear in meaning,
which, it must be added, they sometimes are not. Administrators may also
­defer to the suggestions or judgments of members of Congress, as Department
of Agriculture officials did when receiving advice from Congressman Jamie
Whitten (D, Mississippi). Whitten chaired the House Agricultural Appropriations Subcommittee from 1949 to 1992 (except for 1953 to 1954, when the
­Republicans controlled the House) and later the full Appropriations Committee. Because of his position and strong influence on the actions of the Department of Agriculture, Whitten was sometimes referred to as the “permanent
Secretary of Agriculture.”33 This is a classic example.
Members of Congress often have to vote on issues that are of little ­interest
to them, such as those that do not affect the members’ constituents, those on
which they have little information, or those that are highly complex. On such
issues they may decide how to vote by seeking the advice of other legislators
whose judgment they trust, whether party leaders, committee chairs, or policy
experts. Staff members are also influential here. When members are unable to
decide how to vote from their own analysis of an issue, deference to ­someone
whose judgment they trust is a reasonably rational, low-information strategy for making decisions. Political scientist Donald R. Matthews argues that
­because of the widespread practice of deference to policy experts, “few institutions provide more power to the exceptionally competent member than does
the House of Representatives.”34
Judges, too, make decisions that reflect deference. When they interpret a statute, in either applying it to a case or determining its constitutionality, they may
defer to the intent of the legislature.35 Statutory language is often ­ambiguous
and unclear. In trying to determine what the legislature intends by phrases such
as “restraint of trade” or “all lawful means,” they may make use of the legislative
histories of statutes. One tenet in the theory of “judicial ­self-restraint” holds that
judges “are not free to invoke their own personal notions of right and wrong or
of good and bad public policy when they examine the constitutionality of legislation.”36 To the extent that judges act accordingly in deciding cases, this course
involves some deference to the judgment of legislatures.
Deference
Those confronted with the task of making many decisions
often devise rules of thumb, or guidelines, to focus on facts
and relationships and thereby both simplify and regularize decision-making.
No set of decision rules is common to all decision-makers, although some may
Decision Rules
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Decision Criteria
149
be widely utilized. Which guidelines apply in a situation is a matter to be determined by empirical investigation. Some examples are presented here to illustrate the concept.
The rule of stare decisis (in effect, “let the precedents stand”) is often used
by the judiciary in deciding cases. According to this decision rule or principle, current cases should be decided in the same way as similar cases were
­decided in the past. Using precedents to guide decision-making is by no means
­limited to the judiciary. Executives, administrators, and legislators also frequently make decisions on the basis of precedents. They are often urged to do
so by those who would be affected by their actions, particularly if this act will
help maintain a desired status quo. Those adversely affected by precedents are
likely to find them lacking in virtue and utility, or hopelessly out-of-date.
In the antitrust area, some per se rules have been developed to ease enforcement. Certain economic actions, such as price fixing and market allocation,
have been held to be per se (in effect, “as such”) violations of the Sherman Act.
If the prohibited action is found to exist, this finding is sufficient to prove violation, and no effort is made to inquire into the reasonableness of the prices
fixed or other possible justifications for the action in question. Per se rules thus
add simplicity and certainty to antitrust decision-making.
Professor Richard F. Fenno Jr., in his study of a number of congressional
committees, finds that each committee has some rules for decision (strategic premises) that help shape its decision-making activities. Thus, the House
­Appropriations Committee, seeking to maintain its independence from the
­executive, has a “rule” that it should reduce executive budget requests, and in
fact many requests are reduced. The Education and Labor Committee has a
rule for decision, in Fenno’s words, “to prosecute policy partisanship.” That is,
strong ideological conflict between its Republican and Democratic contingents
is the expected style of committee behavior.37 Fenno points out that every committee has decision rules, although some are easier to discover than others,
and they will change over time.
cience has become an important consideration in policyS
making on environmental, public health, and workplace
health and safety matters. The EPA makes ­extensive use of scientific information, much of it from academic sources, in developing air and water quality
standards.38 The United States Fish and Wildlife Service, in making decisions
on the listing of endangered species, is directed by the Endangered Species
Act (1973) to act on the basis of “the best scientific and commercial data
available.”
A leading environmental historian, Samuel P. Hays, a couple of decades
ago, wrote: “The customary image of the role of science in public affairs
was that as disinterested and objective investigators, scientists would gather
­knowledge that then could be applied by others for the public benefit.”39 In
practice, of course, there is disagreement among scientists on many ­policy
­i ssues. ­B ecause of differences in training, institutional affiliations, and
Science
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150
4 Policy Adoption
personal values, scientists can reach different conclusions on the same body of
data. ­Policy-makers may choose sides, opting to act on the basis of a particular scientific viewpoint because it accords with their policy preferences than
­because they find the science per se compelling.
Uncertainty is endemic in most policymaking. Good science—that using
appropriate methodology and fairly and objectively conducted—can reduce
uncertainty. There is, however, often a shortage of good data or information
on which to base decisions. What then is the decision-maker to do? A standard
ploy is to call for more research, which is what the Reagan administration
did on the problem of acid rain. Those whose economic interests would be
adversely affected by a health standard might contend that action should be
taken only on the basis of conclusive or “iron-clad” evidence.
Reliance could be placed upon the precautionary principle as a guide to
action. This holds that where there are threats of serious or irreversible harm
to human health or the environment, a “lack of full scientific certainty should
not be used as reason for postponing” remedial measures.40 The precautionary
principle does not eliminate the need for policy judgments, but it does increase
the likelihood of positive action. European policy-makers have been more inclined to utilize it than have their American counterparts on matters such as
genetically modified foods.
Most elected and politically appointed public officials are neither ­scientists
nor possessed of a high degree of scientific literacy—an understanding of
­science, of scientific research methodology, or how science contributes to
knowledge. When decision-making calls for an appraisal of scientific information or data, how do they do it? How do they distinguish “good science” from
“junk science”? How do they weigh scientific evidence? Conflicting scientific
arguments? There seems to be no easy answer.41
The Public Interest
The task of government, it is often proclaimed, is to serve or promote the public interest. Statutes sometimes include the public interest as a
guide for agency action, as when the Federal Communications Commission
is ­directed to license broadcasters for the “public interest, convenience, and
necessity.” In this section, this rather elusive normative concept and its usefulness as a criterion for decision-making will be discussed.
Most people, if asked whether public policy should be in accord with the
public interest or with private interests, would opt for the former. As Professor
Charles Anderson remarks: “One cannot justify a policy recommendation on
the grounds that ‘it would make me and my friends richer.’ However refreshing the candor of such an argument might be, it does not and cannot stand as
legitimate warrant for a public action.”42
Difficulty arises, however, when one is asked to define the public interest.
Is it the interest of the majority? If so, how do we determine what policy the
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The Public Interest
151
majority really wants? Is it the interest of consumers, who are a rather large
group? Is it what people would want if they “thought clearly and acted rationally”? How does one define the public interest?
Many people, including most political scientists, would say that it is
not possible to provide a universally accepted or objective definition of the
­concept, especially in substantive terms. Some would contend that whatever
results from the political struggle over policy issues is the public interest. If
all groups and persons had an equal chance to engage in that struggle, which
in fact they do not, this notion of the public interest might be more ­appealing.
An individual may not care to define a multitude of tax loopholes or inaction that permits the wanton destruction of natural resources as in the public
­interest. (That statement, of course, indicates a normative bias, which will be
­disturbing to those who hold rather simplistically that “one person’s opinion is
as good as another’s.”)
Sometimes the public interest is depicted as a myth by which policy,
­however particularistic, can be rationalized as in the general interest and
hence made more publicly acceptable. This stratagem is attempted or performed with regularity (just as scoundrels sometimes wrap themselves in the
flag or cite Scripture to justify their predations). Beyond that, however, the
concept can be given enough content to render it useful as a general standard
for decision-making on public policy. When evaluating policy, we need to be
able to state not only whether the policy is accomplishing its asserted objectives but also whether the objectives are worthy of accomplishment. For the
latter question, a standard of more noble quality than “it is (or is not) in my
interest” seems needed.
The question now arises about how to determine what constitutes the public interest. Professor Emmette S. Redford suggests three approaches to this
task.43 One is to look at policy areas rich in conflict among group interests, as
in agriculture, labor relations, energy, and transportation. In some instances,
the direct interests of one group or another may prevail and become accepted
as the public interest. There is no reason to assume that private interests and
the public interest must always be antithetical. If it is in the private interest of
medical doctors to prevent the practice of medicine by various quacks because
this would give the medical profession a bad reputation, so, too, it is in the
public interest not to have unqualified people or charlatans practicing medicine. (It would seem difficult to argue the contrary position reasonably.)
In the struggle among private group interests, however, it may become
­apparent that others are indirectly involved and have interests that should be
considered in policymaking. These public interests, though not represented by
organized groups, may be responded to by decision-makers, perhaps ­positively,
and thus influence the outcome.
In the conflict between labor and management over terms and conditions of employment, it becomes apparent that the public has an interest in
maintaining industrial peace and preventing disruptions in the flow of vital
goods and services. The result has been the adoption of several procedures for
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152
4 Policy Adoption
settling labor disputes. In a dispute such as one involving the railroad industry,
a public interest may become clear along with those of the railroad companies
and labor unions.
A second approach is to search for widely and continuously shared interests
that, because of these characteristics, can be called public interests. ­Illustrative
are the interests of people in such matters as world peace, better education,
clean air, avoidance of severe inflation, and an adequate traffic-control ­system.
Here the public interest appears as public needs. Especially in large cities
there is a clear public interest in having a traffic-control system to facilitate
safe, orderly, and convenient movement of pedestrians and vehicles. That various alternatives are available for meeting this need can be taken to mean that
more than one way can be found to meet the public interest, that availability
does not negate its existence. Nor does the concept, to be meaningful, need to
be so precise as to indicate whether the traffic flow on a certain street should
be one-way or two-way. A concept to be useful need not always yield answers
to the most minute questions.
There is nothing very mystical in talking about the public interest as a
widely shared interest. We speak, for example, of wheat farmers’ shared
­i nterest in higher wheat prices or that of sport fishermen in an adequate
­fish-stocking program, and attribute much reality to such interests. The ­public
interest ­differs only in its wider scope. There is no way to determine precisely
at what point the interest is widely enough shared as to become a public
­interest. Few interests, indeed, would be shared by everyone. The survival of
the nation-state may be opposed by the advocate of world government; even
at old-time ­western rustler lynchings at least one dissenter might be heard.
Qualitative judgments are obviously called for in determining the existence of
a public interest, as in many areas of political life and academic activity. They
should be made with as much care and rigor as possible.44
A third approach to determining the public interest is to look at the need
for organization and procedures to represent and balance interests, to resolve
issues, to effect compromise in policy formation, and to carry public policy
into effect. There is, in short, a public interest in fair, orderly, and effective government. The focus here is on process rather than policy content. The noted
columnist Walter Lippmann many years ago wrote,
The public is interested in law, not in the laws; in the method of law, not
in the substance; in the sanctity of contract, not in a particular contract; in
understanding based on custom, not in this custom or that. It is concerned
in these things to the end that men in their active affairs shall find a modus
vivendi; its interest is in the workable rule which will define and predict the
behavior of men so that they can make their adjustments.45
Although the public is obviously interested in individual laws as well as in
the law, Lippmann states well the desire for adequate process. How things are
done, moreover, often affects the public’s attitude toward their legitimacy.
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Styles of Decision-Making
153
The public interest is thus diverse and somewhat fugitive, and must be
searched for in various ways. Although it probably cannot be converted into
a precise set of guidelines to inform the action of decision-makers, ­neither
can it fairly be described as merely a myth. It directs attention beyond
­narrow or specific interests and the more immediate toward broader, more
­universal ­interests. It also directs attention toward unorganized and unarticulated ­interests that otherwise may be ignored in both the development and
­evaluation of policy. Moreover, it is an ideal, like justice and equality of opportunity, to which all can aspire.
Styles of Decision-Making
Most policy decisions of any magnitude are made by coalitions, which
frequently take the form of numerical majorities, whether one’s attention is
on Congress, the Michigan State Legislature, the Oakland City Council, or the
Danish Folketing. Even when a single political party has a majority in a legislative body, factions within the party may require attention to coalition building.
Much executive decision-making does not require numerical majorities.
However, the support (or consent, which is much the same) of others is often
needed to ensure that the decision is implemented and compliance is achieved.
President Lyndon Johnson was famous for seeking consensus on actions; in
many instances he could have acted unilaterally but chose not to. The noted
presidential scholar Richard E. Neustadt remarks, “Underneath our images
of Presidents-in-boots, astride decisions, are the half-observed realities of
­Presidents-in-sneakers, stirrups in hand, trying to induce particular department heads, or Congressmen or Senators, to climb aboard.”46 President John F.
­Kennedy sometimes told friends who offered policy suggestions or criticism,
“Well I agree with you, but I’m not sure the government will.”47 These comments
emphasize the coalitional form of much presidential decision-making and the
president’s need to induce others to go along if he or she is to be successful.
Although coalition building is necessary in all democratic legislative
­bodies, it is especially notable in multiparty legislatures. This requirement is
well illustrated by the Danish Folketing, whose 179 seats are divided among 9
or 10 parties, none of which holds close to a majority of seats. To take office, a
Danish prime minister must draw on several parties to put together a majority
coalition, which takes considerable negotiation and bargaining. Once in office,
the prime minister, in taking policy actions, must always be alert to the need
to hold the coalition together, lest he lose his majority and thus the power to
govern.
In the January 2013 Israeli national elections, fourteen political ­parties
participated, and all but one won seats in the 120-member Knesset (the
­parliament). The two biggest winners—Likud-Beiteinu and Yesh Atid—won
31 and 19 seats, respectively.48 Benjamin Netanyahu, the Likud leader and
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154
4 Policy Adoption
current prime minister, was asked to put together a governing coalition. After
several weeks of struggle, Netanyahu was able to fashion a 68-member coalition. Twenty-two of its members were made cabinet ministers. Ultra-Orthodox
parties were excluded from the coalition, much to their displeasure. It was
thought the new coalition would make significant changes in domestic policies
while faltering on the Mideast peace process.49 Holding the coalition together
will be challenging.
In this section, the focus shifts from individual decision-making to
­decision-making as a social or collective process. We examine three styles
of collective decision-making: bargaining, persuasion, and command. Each
­entails action to reach agreement and induce others to comply. Practitioners
of these styles of decision-making will be motivated by the decision criteria
examined in the preceding section.
Bargaining
he most common style of decision-making in the American
T
political system is bargaining. Bargaining can be defined as
a process in which two or more persons in positions of power or authority
adjust their at least partially inconsistent goals in order to formulate a course
of action that is acceptable but not necessarily ideal for all the participants.
In short, bargaining involves negotiation, give and take, and compromise to
reach a mutually acceptable position. In the private realm, it is epitomized in
­collective bargaining over the terms of work by union leaders and ­management
officials, or by the haggling that takes place at flea markets. For bargaining to
occur, the bargainers must be willing to negotiate, they must have something
to negotiate about, and each must have something (i.e., resources) that others
want or need.
Two factors seem especially important in making bargaining the
­dominant mode of decision-making in our society. One is social pluralism,
or the ­presence of a multitude of partially autonomous groups such as labor
unions, business organizations, professional associations, farm organizations,
­environmental groups, sportsmen’s clubs, and civil-rights groups. Although
partially ­autonomous, these groups are also interdependent and “must bargain
with one another for protection and advantage.”50 The second factor is the
­existence of such constitutional practices as federalism, separation of powers,
bicameral legislatures, and legislative committees, which fragment and disperse political power among many public officials and decision points. Major
policy decisions at the national level often require approval by all branches of
government plus acceptance by state or local governments and affected private
groups. This is the case with many current federal policies on aid to public
education and environmental-pollution control.
Bargaining may be either explicit or implicit. When it is explicit, the
­b argainers (group leaders, party officials, committee chairs, department
heads, executives, etc.) state their agreements (bargains) clearly to minimize
the likelihood of misunderstanding. The U.S. Constitution was a product of
­explicit bargaining between large and small states, North and South, and other
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Styles of Decision-Making
155
interests at the Philadelphia convention in 1787. An explicit bargain was struck
by President George Bush and the Democratic congressional leadership in
1990 when the president agreed to tax increases in return for the Democratic
agreement to expenditure reductions in order to reduce the budget deficit. In
international politics, treaties exemplify explicit bargains. Bargaining is widely
practiced in the international arena because the idea of national interests is
well accepted. In domestic politics, bargaining, however necessary and prevalent, is often looked upon as incompatible with a quest for the “public interest”
or, in more crude language, as a sellout.
More frequently, however, bargaining is probably implicit. In implicit bargaining, the terms of agreement among the bargainers are frequently vague
or ambiguous and may be expressed in such phrases as “future support” or
“favorable disposition.” Such bargaining frequently occurs in Congress, where
one member will agree to support another on a bill in return for “future
­cooperation.” Understandings or “gentlemen’s agreements” may be ­negotiated
by administrators in agencies with overlapping responsibilities for administering programs so as to reduce or eliminate conflict among themselves.
Sometimes implicit bargaining is so nebulous that it is unclear whether an
agreement ­a ctually has been reached. In Congress, bargaining frequently
­occurs on procedural actions intended either to slow down or to accelerate the
handling of legislation as well as on the content of legislation.
Three common forms of bargaining are logrolling, side payments, and
compromise. Logrolling, a way of gaining support from those who are indifferent to or have little interest in a matter, usually encompasses a straightforward mutual exchange of support on two different topics. This is a common
form of bargaining because every item on an agenda is not of interest to all
­decision-makers. The classic example of logrolling is an appropriations bill
for rivers-and-harbors legislation, which funds various river, harbor, and
flood-control projects. Members of Congress care mainly about the projects
in their own districts; consequently, those who want a project in their district
essentially agree to support the projects for all the other members’ districts.
­Logrolling is usually implicit.51
Side payments are rewards offered to prospective supporters or coalition
members who are not directly related to the decision at hand, or at least to its
main provisions, but are valued by them for other reasons. Legislative leaders
may use committee assignments, allocation of office space, campaign assistance, and support for members’ “pet” bills as means of securing their support
for legislation.
During consideration of the 1986 tax-reform legislation, the chairman of
the House Ways and Means Committee, Dan Rostenkowski (D, Illinois), used
“transition rules” to gain support for it. 52 Supposedly, these rules ease the
transition between current tax law and a new tax law for various taxpayers.
­However, transition rules also become legislative favors that can be doled out
to win or confirm votes. Because they provide millions of dollars in tax benefits to companies and others in legislators’ home states or districts, they are
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156
4 Policy Adoption
highly valued. The chairman of the Senate Finance Committee also used this
form of bargaining to elicit support for the tax-reform proposal. In all, about
340 transition rules were included in the Tax Reform Act at an estimated total
cost in lost revenue of $10.6 billion over five years.53
Compromise typically involves explicit bargaining, is normally centered on
a single issue, and involves questions of more or less of something. Here the
bargainers regard half a loaf as better than none and consequently adjust their
differences, each giving up something so as to come into agreement. This ­tactic
contrasts with logrolling, which requires no change in the bargainers’ ­original
positions. A fine historical example is the Missouri Compromise of 1820,
which temporarily settled the conflict between North and South over extending slavery into the Louisiana Territory. The North wanted slavery ­excluded
from the territory, and the South wanted no such prohibition. It was finally
agreed that slavery would be prohibited in the territory except in ­Missouri,
north of latitude 36° 30’.
The Civil Rights Act of 1964 also involved many compromises between
those favoring stronger legislation and those wanting weaker or no legislation, especially on the provisions pertaining to public accommodations, equal
employment opportunity, and judicial enforcement. On equal employment
opportunity it was provided that the federal Equal Employment Opportunity
Commission (EEOC) could handle discrimination cases only after existing
state equal-opportunity agencies had a chance to act, and even then the EEOC
could use only voluntary means to reach settlements. This limited enforcement
authority was agreed to in an attempt to reduce conservative opposition to the
legislation. Issues involving money, such as budgets, are probably the easiest
matters on which to compromise because they are readily amenable to the
splitting of differences.
Persuasion
ersuasion involves the marshaling of facts, data, and inforP
mation; the skillful construction of arguments; and the use of
reason and logic to convince another person of the wisdom or correctness of
one’s own position.54 Unlike bargainers, persuaders seek to build support for
what they favor without having to modify their own positions. This task may
involve striving to convince others of the merits or soundness of one’s position,
or the benefits that will accrue to them or their constituents if they accept it, or
some combination of the two. In short, persuaders seek to induce others to go
along or do it their way. Accurate information, reason and logic, and ­effective
argument are the instruments of persuasion; manipulation, ­deception, and
bullying and hectoring are beyond its bounds. They are ­c ompelling, not
­persuasive; but they are sometimes used to gain what one wants.
President Harry S. Truman once remarked, “I sit here all day trying to
­persuade people to do things that they ought to have sense enough to do without my persuading them. . . . That’s all the powers of the President amount
to.”55 Presidential meetings with congressional leaders, for example, are often sessions in which presidential programs and priorities are explained, their
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Styles of Decision-Making
157
likely benefits for members of Congress and their constituents are ­outlined,
and appeals are made for congressional leaders’ support. Meetings with
­administrative officials are used to explain presidential preferences and to win
their allegiance. “A President is most persuasive when he or she makes his
pitch personally in direct conversation with those involved.”56 Presidents, of
course, also have extensive capacity to bargain and command.
The use of persuasion is widespread in the governmental process. ­Attorneys
who argue cases before the Supreme Court not only present their side of the
issue through written briefs and oral arguments but also seek to convince a
majority of the justices of the correctness of their position. In this process,
the justices are more than inert sponges absorbing the advocacy directed at
them. Their questions and comments provide positive or negative responses
and guidance to the opposing attorneys.
Within Congress, appeals by party leaders to the rank-and-file members
to the effect that “your party needs your support on this issue; can’t you go
along?” are essentially persuasive in style and content. In these and many
other instances, decision-makers or those wishing to influence their decisions,
as the case may be, either lack the capacity to command or know that bargaining is inappropriate or of limited utility. Persuasion is then the alternative on
which they must rely.
argaining involves interaction among peers; command
B
­involves hierarchic relationships among superordinates and
subordinates. Command is the ability of those in superior positions to make
decisions that are binding upon those who come within their jurisdiction. They
may use sanctions in the form of either rewards or penalties, although usually
sanctions are thought of as penalties, to reinforce their decisions. Thus, the
subordinate who faithfully accepts and carries out a superior’s decision may be
rewarded with favorable recognition or a promotion, and the one who refuses
to comply may be fired or demoted. President Clinton’s decision to issue an
­executive order replacing the Reagan–Bush regulatory review program with
one of his own devising was essentially an act of command.
The Office of Management and Budget engages in command behavior
when it approves, rejects, or modifies agency requests for appropriations
and proposals for legislation prior to their transmittal to Congress. On the
whole, however, command is more characteristic of decision processes in
­dictatorial rather than democratic societies and in military rather than civilian ­organizations because of their greater hierarchic qualities. Command is
the primary style of decision-making in many developing countries in Africa
and ­Southeast Asia.
In practice, bargaining, persuasion, and command often run together in
decisional situations. The president, although he or she has authority to make
many decisions unilaterally, may nonetheless also implicitly bargain with subordinates, modifying his or her position somewhat and accepting some of their
suggestions, in order to gain more ready and enthusiastic support.57
Command
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158
4 Policy Adoption
Within agencies, subordinates often seek to convert command relationships
into bargaining relationships. A bureau that gains considerable congressional
support may thus put itself into position to bargain with, rather than simply
be commanded by, the department head. A pollution-control agency may have
the statutory authority to set and enforce pollutant-emission standards. In the
course of setting the standards, it may, however, bargain with those potentially
affected, hoping to gain easier and greater compliance with the standards set.
Presidential and gubernatorial efforts to win support for legislative proposals
also typically combine persuasion and bargaining.
In summary, bargaining is the most common form of decision-making in
the American policy process. Persuasion and command are supplementary,
­being “better suited to a society marked by more universal agreements on values and a more tightly integrated system of authority.”58 Nowhere has the bargaining process been better illustrated than in Congress, to which we now turn.
Majority Building The enactment of major legislation by Congress requires
development of a numerical majority or, more likely, a sein Congress
ries of numerical majorities, which are most commonly
created by bargaining. Even if a majority in Congress agrees on the need for
action on an issue such as labor-union reform, they may not agree on the form
it should take, thereby making bargaining essential.
A highly important characteristic of Congress that has much importance
for policy formation is its decentralization of political power. Three factors
contribute to this condition. First, the political parties in Congress are weak
in that party leaders have only limited power to control and discipline party
members. In contrast with the strong-party leaders in the British House of
Commons, who have a variety of means for ensuring support of party policy
proposals by party members, congressional leaders, such as the floor leaders,
have few sanctions with which to discipline or punish recalcitrant party members. The party leadership possess only “bits and fragments” of power, such as
desired committee assignments, office space, use of the rules, and ability to
persuade, with which to influence the rank and file. The member who chooses
to defy party leadership can sometimes do so with impunity, and, indeed, not a
few people will probably applaud such independence.
Second, the system of geographic representation and decentralized
­elections contributes to the decentralization of power in Congress. Members
of the House and Senate are nominated and elected by the voters in their
­constituencies and owe little or nothing for their election to the national party
organizations or congressional leaders. It is their constituencies that ultimately
wield the power to hire and fire them, and it is therefore to their constituencies
that they must be responsive, at least on some crucial matters, if they wish to
remain in Congress. From time to time, important constituent interests in a
district may be adversely affected by party programs. ­Conventional congressional wisdom holds that when party and constituency interests conflict, members should vote their constituency, as their reelection may depend upon it.
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Styles of Decision-Making
159
A third factor contributing to the decentralization of power in Congress
is the committee system. The House has twenty standing committees and
the Senate sixteen, with jurisdiction over legislation in such areas as agriculture, appropriations, energy and natural resources, international relations,
and ­human resources. Traditionally, these committees have done most of the
legislative work in Congress. Nearly all bills are referred to the appropriate
standing committees for consideration before being brought to the floor of the
House or Senate for debate and decision. The standing committees possess
vast power to kill, alter, or report unchanged the bills sent to them; most bills
sent to committees are never heard from again.
Until the 1970s, the committee chairs, who gained their positions by seniority, had much power over the operation of their committees. Often referred to
as “barons,” they selected the committee staff, scheduled and presided over
meetings, set the agenda, scheduled hearings and chose witnesses, and ­decided
when votes would be taken. Through long experience, they were often highly
knowledgeable on the policy matters within their committees’ jurisdiction.
­Because of the fairly large number of interests that came within their jurisdiction, the chairs could act as brokers to build compromises among conflicting
or differing interests.
Reforms in the 1970s reduced the power of committee chairs and altered
the organization and operation of the committee. Most committees divided
their jurisdiction among a number of subcommittees. In the House, a subcommittee “Bill of Rights” provided substantial independence for subcommittees
from their parent committees. This significantly decentralized and fragmented
legislative work and power, and produced what some called “subcommittee
government.” Changes made by the House Republicans after they gained the
majority in 1995 restored some of the power of committee chairs and reduced
the independence of subcommittees. On the other hand, seniority is now o
­ ften
bypassed in the selection of House committee chairs. The Senate Democrats,
­however, do continue to stress seniority in selecting committee chairs.
Currently, the number of subcommittees totals eighty-eight in the House
and sixty-eight in the Senate. They do much of the legislative work for most
committees and give members, if they so choose, additional opportunities to
specialize and develop policy expertise.
Committees in the House and Senate generally act as gatekeepers, controlling the flow of legislation to the floors. “The bills they report largely determine
what each chamber will debate and in what form.”59 The committee system
also increases the points of access for interest groups, administrative officials,
and others wanting to get involved in the legislative process.
Decentralization of power in Congress, together with the complexities of
its legislative procedures, usually requires the cobbling together of a series of
majorities to enact important legislation. A bill must pass through a number
of decision stages (they have also been called obstacles) in becoming a law.60
Briefly, in the House, these are subcommittee, committee, Rules Committee,
and finally, floor action; and in the Senate, subcommittee, committee, and
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160
4 Policy Adoption
floor action. Assuming that the bill is passed in different versions by the two
houses, a conference committee must agree on a compromise version, which
then must be approved by the two houses. (In recent years, however, other
­alternatives have often been used to gain agreement between the two houses.)
If the president approves it, the bill becomes law; if he vetoes it, however, the
bill becomes law only if it is passed again by a two-thirds majority in each
house. Thus, at ten or twelve stages, a bill requires approval by some kind of
majority. If it fails to win majority approval at any one of these stages, it is
probably dead. Should it win approval, its enactment is not ensured; rather, its
supporters face the task of building a majority at the next stage.
Extraordinary majorities are constitutionally required for some matters. Two-thirds majorities are required for Senate approval of treaties and in
both houses to propose constitutional amendments. I earlier referred to the
­two-thirds majorities required to override presidential vetoes. From 1789 to
2012, of the 2,567 bills vetoed by the presidents, only 109 were subsequently
enacted into law. Congress overrode one of George Bush’s forty-six vetoes, two
of Bill Clinton’s, four of George W. Bush’s, and neither of Barack Obama’s two.
Bills that are vetoed usually stay vetoed.
Debate on a bill in the Senate usually can be ended only by a unanimousconsent agreement (which lets a single senator obstruct action) or by imposing
cloture.61 The cloture rule now provides that debate (or what passes for it) can
be halted by a motion signed by sixteen senators and approved by three-fifths
of the entire Senate (sixty senators). Because one senator who opposes a bill
can prevent the closing of debate by a unanimous-consent agreement, cloture is
the only alternative for shutting down a filibuster, other than giving up the bill.
As Congress became more sharply polarized in the last decade, filibustering
in the Senate skyrocketed; there were 112 cloture motions or votes in the 110th
Congress (2007–2008), 137 cloture votes in the 111th Congress (2009–2010),
and 115 in the 112th Congress (2011–2012). Nothing of importance escaped
the threat of a filibuster. Sixty votes became necessary to pass important bills.
Majority rule gave way to minority rule in the Senate.62
Some Democrats became restive and called for reform. One proposal said
the filibuster should be banned. Another said those involved in a ­filibuster
should be required to be present on the Senate floor and speak to impede
­action on a bill. (This was not required, nor did they have to show they actually
had forty-one votes.)
In January 2013, Senate leaders, responding to criticism and pressure for
change, negotiated a modest compromise. A motion to proceed and ­begin
­debate on a bill could not be filibustered if the Republicans were permitted to offer two amendments. (This held only for 2013–2014.) Other changes
were intended to quicken legislative action after a cloture vote succeeded, as
was action of the approval of federal district judges and lower-level executive
­appointments. Filibusters continued to be in order on the enactment of legislation and the approval of appointments. In short, the filibuster was still alive
and well; the minority continued to be able to prevail.63
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Presidential Decision-Making
161
Indeed, for controversial legislation, the multiplicity of stages, or ­decision
points, in the congressional legislative process provides access for many groups
and interests. Those who lack access or influence at one stage may ­secure it at
another. It thus becomes quite unlikely that one group or interest will dominate
the process. The complexity of the legislative process, however, has a conservative effect in that it gives an advantage to those seeking to block the enactment
of legislation. And it is well to remember that many groups are more interested
in preventing than securing enactment of legislation, or in holding change to
a minimum when the adoption of legislation is inevitable. All they have to do
to achieve their preference is to win support by a majority, or perhaps only a
dominant legislator, at one stage in the process. Here is ­support for the familiar generalization that procedure is not neutral in its effects.
Much bargaining is usually necessary for the enactment of major legislation by Congress, even within the Democratic Party when it is in the majority.
Those who control the various decision points, or whose votes are needed to
construct a majority may require the modification of a bill as a condition for
their approval, or they may exact future support for some item of interest to
themselves. Bargaining is facilitated not only by the many decision points but
also because legislators are not intensely interested in many matters on which
they must decide. It is no doubt easier for them to bargain on such issues than
on issues on which they have strong feelings. It seems unnecessary to elaborate further here upon the ubiquity of bargaining in Congress.
Presidential Decision-Making
Apart from playing an integral role in the legislative process, the
­ resident can also be viewed as a policy adopter in his own right. In ­foreign
p
affairs, much policy is a product of presidential actions and decisions, based
on the president’s constitutional authority and/or on broad congressional
­d elegations of power. Decisions to recognize foreign governments and to
­establish formal diplomatic relations with them, as the Nixon and Carter
­administrations did with the People’s Republic of China, are in the president’s
domain. Treaties with other nations are made and entered into on behalf of
the United States by the president, subject to approval by the Senate. One can
cavil on whether the president is the true decision-maker here.
In the instance of executive agreements, which have the same legal force
as treaties, and which are used much more frequently than treaties in foreign
relations, there can be no doubt: the president makes the decisions. Executive
agreements have been used to end wars, establish or expand military bases
in other countries, and limit possession of offensive weapons by the United
States and foreign nations. They are also often used for more routine purposes
such as tariff reductions and customs enforcement.64
For more than a half-century, international trade policies have been
­primarily a construct of presidential action, albeit based on congressional
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162
4 Policy Adoption
authorizations because the Constitution delegates to Congress control of
“­commerce with foreign nations.” Through the time of the 1930 Smoot–­Hawley
Tariff, by which Congress in a frenzy of logrolling elevated tariffs to an all-time
high, this issue area had been dominated by Congress. Change began with the
New Deal and enactment of the Reciprocal Trade Agreements Act of 1934.65
This statute authorized the president to enter into agreements with other nations to lower tariffs and other trade barriers (e.g., import quotas). Since then,
under the guidance of presidential leadership and decisions, the United States
has continually advocated and moved toward free trade. All presidents since
the Great Depression have been advocates of the reduction of trade barriers.
U.S. tariffs now average less than 5 percent of the value of imported products.
In domestic matters, Congress often delegates discretionary authority
to the president or to agencies under his direction and control. Executive
­orders, which are not mentioned in the Constitution, but which have become
an ­accepted presidential prerogative, are also used by presidents for making
­domestic policies.66 Executive orders have been promulgated to desegregate
the armed services, establish loyalty-security programs, require affirmative
­action by government contractors, classify and withhold government documents from the public, and provide for presidential supervision of agency
rule-making. Presidents Johnson and Carter used executive orders to establish
systems of voluntary wage and price controls to combat inflation. ­Nothing in
the ­Constitution or laws specifically authorized them to so act. On the other
hand, nothing ­prohibited them from so doing. Operating with a broad view
of presidential power under the Constitution, they responded to necessity as
they saw it.
By considering some of the factors that shape and limit presidential decision-making, we not only can gain useful insight into presidential
­decision-making but also discover another perspective from which to view
decision-making in general. Before proceeding further, it must be stressed that
presidential decision-making is an institutional process. Many executive staff
agencies, White House aides, and other advisers (both official and ­unofficial)
assist the president in the discharge of his or her responsibilities. But whether
he or she simply approves a recommendation from below or makes his or
her own independent choice, the president alone has the ultimate formal
­responsibility for the decision.
Several factors help shape and limit presidential decision-making.67 One is
permissibility, an aspect of which is legality. The president is expected to act in
conformity with the Constitution, statutes, and court decisions. The lack of a
clear constitutional or legal basis certainly contributed to congressional criticism of the Nixon administration’s Cambodian bombing policy in the summer
of 1973 and to an agreement by the administration to cease bombing after
August 15, 1973, in the absence of congressional authorization. The George W.
Bush administration developed a theory of the “unitary executive,” which
stretched presidential power beyond normal bounds in an attempt to validate
its actions. In the view of many, it was highly dubious.
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Presidential Decision-Making
163
Another aspect of permissibility is acceptability. Foreign-policy decisions
often depend for their effectiveness upon acceptance by other nations, and
domestic-policy decisions, such as that by President Reagan to recommend
elimination of the Department of Energy, may depend upon their acceptance
by Congress, executive-branch officials and agencies, or the public.
A second factor is available resources. The president does not have the
­resources to do everything he or she might want to do, whether by resources
one means money, personnel, patronage, time, or credibility. Funds allocated
to defense are not available for education or medical research. Only a limited
number of appeals to the public for support for his or her actions can be made
without the possibility of diminishing returns. Time devoted to foreign-policy
problems is time not available for domestic matters. Although the ­president
has considerable control over the use of his or her time—over whether ­devoting
more time to foreign than to domestic affairs, for instance—he or she does not
have time to get involved with everything that he or she might wish.68 Lack of
credibility (or the existence of a “credibility gap”) may also limit the president,
as the experiences of Presidents Johnson and Nixon attest.
A third factor is available time, in the sense of timing and the need to
act. A foreign-policy crisis may require a quick response, as in the historic
Cuban missile crisis of 1962, or the Iraqi invasion of Kuwait in 1990, or the
­September 11, 2001, terrorist attack, without all the time for deliberation and
fact-gathering one might prefer.69 Domestic-policy decisions may be “forced,”
as by the need to submit the annual budget to Congress in February or the
constitutional requirement to act on a bill passed by Congress within ten days
if the president wishes to veto it, barring the possibility of a pocket veto. (If
a bill reaches the president during the last ten days of a session, or after the
Congress has adjourned, and the president does not sign it, it is automatically
vetoed.) Former White House aide Theodore C. Sorensen states,
There is a time to act and a time to wait. By not acting too soon, the President may find that the problem dissolves or resolves itself, that the facts are
different from what he thought, or that the state of the nation has changed.
By not waiting too long, he may make the most of the mood of the moment,
or retain that element of surprise which is so often essential to military and
other maneuvers.70
President Reagan demonstrated the importance of timing when he moved
quickly and decisively in the first months of his term to secure adoption of his
economic program of tax cuts and reductions in domestic expenditures. By
so doing, he was able to capitalize on the euphoria and political support that
usually attend the early days of a new administration. As time goes on, these
conditions decline, and the president’s political life becomes more difficult.
Professor Paul Light states that presidents are confronted with cycles of
increasing effectiveness and decreasing influence. Presidents become more
­effective over the course of their terms as their information and expertness
expand and as their staffs become more knowledgeable and skilled in handling
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164
4 Policy Adoption
their duties. In short, learning occurs. At the same time, however, ­presidential
influence diminishes. Presidents customarily suffer a midterm loss of party
seats in Congress, and their standing in public-opinion polls declines as more
people find fault with their performance. Also, time becomes too short to
launch major initiatives, and staff energy and creative stamina lessen. The
two cycles create a presidential dilemma. The cycle of decreasing influence
encourages a president to move quickly on his agenda; the cycle of increasing
effectiveness suggests restraint. “If there is any point in the presidential term
when the cycles are at the best blend,” Light says, “it is in the first moments of
the second term.”71 But that depends on the president’s being lucky enough to
have a second term.
Previous commitments are a fourth factor that may shape presidential
­decisions. These commitments may be personal, taking the form, for ­instance,
of campaign promises or earlier decisions. Although too much emphasis can be placed on the need for consistency, the president must avoid the
­appearance of deception or vacillation if he or she is to retain credibility and
political ­support. Jimmy Carter suffered from a reputation (not fully deserved)
for ­indecisiveness, as when in 1977 he proposed a tax rebate to stimulate the
­economy and then reversed himself a few months later because of economic
conditions. Campaigning for the presidency in 1980, Ronald Reagan pledged
to eliminate the Department of Education. He neither made good on the pledge
nor suffered much in reputation as a consequence. People were often more
attentive to and influenced by the president’s words than by his actions. But
woe may befall the reneger. When George Bush violated his ill-advised 1988
campaign pledge of “Read my lips. No new taxes” by supporting a tax ­increase
in 1990, this greatly angered many of his more conservative supporters and
caused him much political discomfort.
Commitments may also take the form of traditions and principles, such as
those holding that the United States meets its treaty obligations and ­engages
in military action only if attacked. During the Cuban missile crisis, an air
strike without warning on the Soviet missile sites was rejected by the K
­ ennedy
­administration as a “Pearl Harbor in reverse”; a naval blockade of Cuba was
chosen instead. A “first-strike” strategy generally has been excluded from
American foreign policy. A major exception was the George W. Bush administration’s decision to wage “preemptive ” war against Iraq.
Finally, available information can be an important influence on ­presidential
decisions. Many sources of information—official and unofficial, overt and
­covert—are available to the president. At times, particularly on ­domestic-policy
issues, he may be subject to inundation in a torrent of words, paper, and
­conflicting recommendations. Still, the president at times may be confronted
by a shortage of reliable information, especially in foreign affairs, even though
he or she likely has the best information that is available. Reliable information on possible national and international reactions to the possible bombing
of Serbian forces in Kosovo, the resumption of nuclear testing, or a Strategic
Defense Initiative (“Star Wars”) may be scarce because of the need to predict
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Presidential Decision-Making
165
what will happen in the future. The George W. Bush administration went to
war in Iraq on the basis of faulty information, of which they were likely aware.
Predicting the future is an uncertain task, except perhaps for a few who claim
a sixth sense or a clear crystal ball.
Domestic-policy decisions also often involve some uncertainty. This may
become quite obvious when economic-stability policy is under consideration.
Will a reduction in income taxes encourage higher levels of investment and
economic growth? How much restraint must be imposed on the economy to
break the back of the inflationary psychology contributing to inflation? When
all the advice is in, the president has to make a choice—a calculated one based
on limited information—that the alternative chosen will produce the desired
result. Uncertainty may contribute to delay and lack of action on some ­matters.
Amid doubts as to what needs to be done, or what effect an action may have,
the decision may be to hold off, to see whether things will work themselves out
or to let the situation “clarify itself” (i.e., to give oneself more time to gather
information on conditions and alternatives). Sometimes doing nothing can be
a good policy. On the other hand, the economic situation may be so bad that as
in 2008–2009, inaction is simply unacceptable to most informed people.
As a leader in policy formation, the president is subject to numerous
­political pressures and constraints, however great his or her legal powers may
­appear to be. Legal authority by itself often does not convey the capacity to
act effectively. Thus, presidents may have to persuade because they ­cannot
­command; they may have to bargain because they cannot compel action. On
many issues, once they have made a decision, they must seek the support
of an often fickle public or a skeptical Washington community. “The struggling ­facilitator, not the dominating director, is the description that generally
matches the process of presidential decision-making.”72
CASE
STUDY
Policy Adoption: Consumer Bankruptcy
This case illustrates some of the difficulties involved in getting policy adopted, even when the votes are apparently there. ­Subsidiary
issues, largely symbolic in nature, can and do complicate the process.
The Constitution delegates authority to Congress “to establish . . . uniform
laws on the subject of bankruptcies throughout the United States.” Congress
did not accomplish this until 1898, when it adopted the National Bankruptcy
Act. Periodically this law has been altered in response to pro-creditor or
pro-debtor forces. In 1978, the policy pendulum swung in a pro-debtor direction. The Bankruptcy Reform Act of 1994 made a variety of changes in the
bankruptcy code and provided for the appointment of a National Bankruptcy
Review Commission, whose mandate was to determine whether yet more
changes were needed.
People filing for personal bankruptcy, which is the subject of this case
study, may do so under either Chapter 7 or Chapter 13 of the bankruptcy
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166
4 Policy Adoption
code, subject to the approval of a bankruptcy judge. Under Chapter 7, a person is required to sell all of his or her eligible assets (work tools and home
furnishings are exempted). The proceeds are then allocated among those
owed unsecured credit, such as credit card companies and hospitals. Secured
credit—as for cars and houses—is handled separately. In contrast, under the
more stringent Chapter 13, the debtor is required to restructure her debt and
work out a plan to repay as much of her debt as possible over a three- to fiveyear period. Assuming that the debtor can do this, creditors will recover more
of their money under Chapter 13 proceedings.
Since the early 1980s, personal bankruptcy filings, which constitute
more than 95 percent of total filings, have greatly increased (see Table 4.1).
Solid evidence on how to explain the increase is lacking. It is indisputable
that buying on credit has become part of the American way of life and that
the use of credit cards has increased exponentially. A Federal Reserve Board
study found that only 15 percent of Americans possessed credit cards like
Visa and MasterCard in 1970. In 1983, 43 percent did; in 1998, 68 percent
carried cards.73 As one would expect, consumer debt skyrocketed.
Many argue that personal crises—divorce, job loss, and major illness
among them—have caused many people to be unable to pay their debts
and consequently to choose to file for bankruptcy. Other proffered explanations include the consequences of legalized gambling; the increased social
TABLE 4.1
Personal Bankruptcy Filings, 1980–2012
1980
1985
1990
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012 (est.)
287,570
341,233
718,107
874,107
1,125,006
1,260,118
1,398,182
1,281,581
1,217,972
1,452,030
1,539,111
1,625,208
1,563,145
2,039,214
597,265
822,590
1,064,927
1,412,838
1,536,799
1,362,847
1,300,000
Source: American Bankruptcy Institute.
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Presidential Decision-Making
167
acceptability (or decreased social stigma) of bankruptcy; a large number of
small, independent-business failures; and aggressive advertising by bankruptcy attorneys seeking clients. Many place some of the blame on creditors
themselves and their profligate distribution of credit cards, even to unemployed college students with no credit history.
In its 1999 final report, the National Bankruptcy Review Commission said
that the rise in consumer bankruptcies was probably “more a function of a
changing debt structure [on the part of consumers] than a sudden willingness to take advantage of the bankruptcy system.” The commission noted that
between 1977 and 1997, consumer debt had increased by nearly 700 percent.
It recommended many limited changes in the bankruptcy code to block both
creditor and debtor abuses.74
Undeterred by the commission’s report, creditor groups launched an intense campaign to get Congress to make major changes in the bankruptcy
code.75 They most strongly wanted provisions for “means testing” that would
herd many people into filing under Chapter 13 rather than Chapter 7. Banks,
credit card companies, retailers, and other lenders, many allied in the National
­Consumer Bankruptcy Coalition, vigorously lobbied members of Congress.
Campaign contributions flowed in generous quantities to both parties, amounting to hundreds of millions of dollars over a six-year period.76 Opinion polls
showing public support for bankruptcy reform were commissioned, as were
studies on the costs of bankruptcy. Newspaper advertising trumpeted dubious
claims like “Today’s record number of personal bankruptcies costs every
American family $400 a year.” As a likely consequence of all of this, bankruptcy reform became a top item on the congressional agenda. Its strong
bipartisan support includes practically all Republicans and a substantial contingent of Democrats.
The legislative struggle over consumer bankruptcy got underway in 1997.
Legislation was sponsored in the House by Representative George Gekas
(R, Pennsylvania) and in the Senate by Charles Grassley (R, Iowa) and ­Richard
Durbin (D, Illinois). Both bills were intended to make it more difficult for
people to file for bankruptcy under Chapter 7, although the “means test” used
for this purpose was more stringent in the House bill. The Senate bill provided
more protection for consumers, as in a provision requiring credit card companies to tell a borrower in every monthly statement how long it would take to
pay off the balance if only the minimum payment was made each month.77
The House acted first, passing its bill in June 1998 by a vote of 306 to118.
No Republicans voted against the bill whereas eighty-four Democrats voted
in favor. The Senate followed in September, passing its bill by a 97-to-1 vote.
Many Democrats supported it because of its consumer-protection provisions.
The conference committee that met to resolve differences in the two bills was
dominated by the Republicans, who stripped many of the consumer-protection
provisions from the compromise version, even though the Clinton administration threatened a veto if the bill was too hard on borrowers. Because of the
conference committee action, Senator Durbin now opposed the bill.
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4 Policy Adoption
The House adopted the conference committee report, 300 to 125. Because
of Democratic opposition and end-of-the-sessions pressures, the Senate never
voted on the conference report. The Republicans proposed that the measure
be included in an omnibus appropriations bill that was moving through
­Congress. This ploy failed because the Clinton administration insisted on
changes in the means test that creditors would not accept.78
The consumer bankruptcy struggle was renewed during the 106th
­Congress (1999–2000). The House Judiciary Committee quickly reported a
bankruptcy bill similar to the previous bill. On May 5, 1999, the bill passed
the House, 331 to 108, after some consumer-friendly amendments to it were
adopted. For example, credit card companies were required to state when
initial low “teaser” interest rates would expire and what higher rate of interest
would then apply.
The Senate Judiciary Committee reported a bankruptcy bill on April 14
by a 14-to-4 vote. Bipartisan support was achieved by leaving some issues,
such as information disclosure by credit card companies, unresolved. The
bill ­encountered major difficulty when it was targeted by proponents of several nongermane amendments, including an increase in the minimum wage.
Not until February 2000 was the Senate able to act on the bankruptcy bill,
which it then easily passed, 83 to 14. However, the bill included controversial
provisions raising the minimum wage to $6.15 an hour over three years and
providing $18.4 billion in tax cuts, mostly for small businesses. These were
opposed by the White House.79 The Senate bill imposed fewer restrictions on
bankruptcy ­filers than did the House bill.
In time, Senate leaders were able to disentangle the minimum-wage and
tax provisions from the bankruptcy bill. Then they confronted the task of
reaching agreement with the House. Two issues—the Schumer Amendment
and the homestead exemption—were major sticking points.
An amendment to the Senate bill proposed by Senator Charles Schumer
(D, New York) barred protestors at abortion clinics from declaring bankruptcy to avoid paying fines or other financial judgments imposed on them.
­Republicans argued that it was unfair to single out abortion protestors.
­Representative Henry Hyde (R, Illinois) sponsored an amendment that provides that any individual convicted of “willful and malicious” acts of violence
in any venue should be unable to use bankruptcy to discharge debts resulting from those actions. This was acceptable to Republican leaders but not to
many Democrats, who argued that it would be too difficult to enforce. It was
also opposed by President Bill Clinton.
The homestead exemption in the bankruptcy code permits many debtors
to protect home equity from creditors. The limits are set by the states and
in most range from $40,000 down to zero. However, in five states—Florida,
Iowa, Kansas, South Dakota, and Texas—there is no limit. As a consequence,
Texas and Florida have developed reputations as havens for wealthy bankruptcy filers. (There has been no great urge to relocate to the other three
states). An example is the often-cited case of movie actor Burt Reynolds, who
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Presidential Decision-Making
169
used a bankruptcy proceeding to shed $8 million of debt while retaining title
to his $2.5 million Florida mansion. The conference committee set the cap on
the homestead exemption at $100,000, but only for homes bought within two
years of a bankruptcy filing. Many, including the president, saw this as a loophole and favored a limit with no conditions.
The House approved the conference committee report by a voice vote on
October 12. Because of delaying tactics by the conference report’s opponents,
the Senate Republican leaders were not able to get a vote on it until near the
session’s end on December 7. It was approved, 70 to 28. Called the Bankruptcy
Reform Act of 2000, it was pocket-vetoed by President Clinton after Congress
adjourned. In addition to the absence of the Schumer Amendment and the
­nature of the homestead exemption, Clinton objected to the bill because it
would put too much pressure on low-income families.
Round three of the consumer bankruptcy struggle began in January 2001.
The situation looked favorable to the proponents of bankruptcy overhaul
­because President George W. Bush pledged to sign the bill when it reached
him. Bills similar to the one vetoed by President Clinton were introduced
in the House and Senate. The “means test” included in them provided that
­persons filing for bankruptcy would have to use Chapter 13 if they had
­incomes sufficient to repay 25 percent of their debt or $10,000, whichever was
less, over five years. However, debtors who earned less than the state median
income would be exempt and could file under Chapter 7.
The House Judiciary Committee, after acting to block amendments to
the bill, approved it by a 19-to-8 vote. On March 1, following rejection of a
­Democratic substitute more friendly to debtors, the House passed the bill,
306 to 108. In the Senate Judiciary Committee, the Republicans sought to
speed up floor action by cutting deals with the Democrats. A compromise was
reached on the Schumer Amendment. Now, rather than specifically mentioning abortion protestors, it referred to the 1994 Freedom of Access to Clinics
Act, which made obstructing access to abortion clinics a federal crime.
The bankruptcy bill reached the Senate floor early in March. Republican
leaders were able to defeat almost all amendments to the bill, which passed
by an 83 to 15 margin after the Senate had voted, 80 to 19, to close debate.
­­Republican leaders in the two houses had hoped to be able to avoid a conference
committee. House Republican leaders, however, indicated that the Schumer
­Amendment was objectionable to them. House Republicans opposed to abortion
rights were expected to try to remove the provision in the conference committee.
That, however, would increase Democratic objections to the entire bill. Another
sticking point was an amendment to the Senate bill putting a $125,000 limit on
a house, whenever purchased, that could be shielded from bankruptcy. This was
strongly opposed by Florida and Texas legislators.80 No surprise here.
Moving the bankruptcy bill to conference was delayed by a Senate disagreement because of its membership. The Senate was evenly split, 50–50,
between the parties; the Democrats insisted on an even split of all seats on
conference committees; the Republicans said they were entitled to at least a
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170
4 Policy Adoption
one-seat edge over the Democrats. This logjam was finally broken in June,
when the Democrats took over the Senate, following Senator James Jeffords’s
(I, Vermont) departure from the Republican Party. Democratic leader Senator
Tom Daschle (D, South Dakota), a supporter of the bankruptcy bill, pledged to
get the bill passed.
The conference committee was scheduled to meet on September 12. That
meeting was put off, however, because of the September 11 terrorist attacks.
Then, as the economy lapsed into recession, some members of Congress,
notably Democrats, lost some of their enthusiasm for cracking down on debtors.81 Consequently, not until November 14 did the conference committee
meet, and then no real bargaining was done. Staff members of the House and
Senate Judiciary Committees then began working to resolve differences between the houses. Neither side was willing to give much ground on the homestead exemption, in which the House favored a two-year time limit, and the
Schumer Amendment.
In April 2002, House and Senate negotiators were finally able to resolve
the homestead exemption issue. It was agreed that no more than $125,000
in home equity could be shielded from creditors when the home had been
bought less than forty months prior to the bankruptcy filing. Prompted by the
collapse of the Enron Corporation, the time limit was denied to persons convicted of felonies and securities fraud.
The abortion issue was not resolved, however, because of the intransigence
of Senator Schumer and Representative Hyde, who were backed by the Senate
Democrats and House Republicans, respectively. Each “offered compromise
versions of the abortion provision that would narrow it to cover only certain
intentional criminal acts against abortion clinics. But they disagree[d] on the
wording and the crimes that would be covered.”82 A meeting of the conference committee in late May adjourned without being able to settle the issue.
Despite renewed pressure from the financial interests, who feared their hopes
would be again dashed, the stalemate persisted on into the summer.
Finally, in late July, Schumer and Hyde were able to reach agreement. The
wording of the bill was tweaked by removing “reproductive health services”
and substituting general language ensuring that abortion clinic protesters
could not hide behind the bankruptcy laws. The way now appeared clear for
enactment of the bankruptcy-reform bill.
The compromise provision on abortion clinic protesters was not acceptable to a bloc of eighty-seven antiabortion House Republicans, however. They
joined with House Democrats who opposed the bill as being anticonsumer to
reject it by a 243-to-172 vote. The Senate Democratic leadership refused to
consider a bill not including the abortion-protestor provision.83 Once more
bankruptcy overhaul failed to win adoption because of an extraneous issue.
Round four of the bankruptcy struggle took place during the 108th
­Congress (2003–2004). Early in 2003, by a 315-to-113 margin, the House
passed a bankruptcy-reform bill without the abortion-protestor provision.
­Senator Schumer announced that he would try to attach this provision to
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Presidential Decision-Making
171
the Senate bill. Supporters of bankruptcy reform were hopeful that with the
­Republicans in control of the Senate this action could be blocked.84 They were
unsuccessful.
In January 2004, in an attempt to spur Senate action, the House attached
the personal bankruptcy-reform bill to a Senate-passed bill renewing bankruptcy protection only for farmers and requested a conference.85 This ploy
failed, and the bankruptcy bill remained bottled up in the Senate Judiciary
Committee. Thus, the 108th Congress adjourned without passage of the bankruptcy bill, again to the dismay of business and financial groups.
The fifth round of the bankruptcy battle got underway quickly in the 109th
Congress (2005–2006). Prospects for the legislation were enhanced by the
fifty-five-member Republican Senate majority resulting from the 2004 congressional elections. The Senate Judiciary Committee reported the bankruptcy
bill, now titled the Bankruptcy Abuse Prevention and Consumer Protection
Act, in February; it was considered on the Senate floor in March. Democratic
amendments to ease the bill’s impact on senior citizens and on persons with
catastrophic medical expenses were rejected, as was the Schumer ­Amendment
on abortion protestors, the latter by a near-party-line vote of 46 to 53. The
Senate then voted, 69 to 31, to invoke cloture, which guaranteed passage of
the bill.86 The vote on final passage was 74 to 25.
In the House, the Republican leadership’s strategy was to pass the ­Senate
bill without amendments, thereby obviating the need for a conference committee.87 Consequently, the bill was reported out of the Judiciary ­Committee
without change and debated on the House floor under a closed rule, much
to the ire of some Democrats. The bill passed by a vote of 302 to 126; no
­Republican voted nay. President George W. Bush signed it into law in midApril, saying it would “make our financial system stronger and better.”
The Bankruptcy Abuse Prevention and Consumer Protection Act ­includes
a “means test” providing that bankruptcy filers who earn more than their
state’s median income, and who can pay back at least $6,000 over five years
after allowable expenses—for food, clothing, and other necessary matters—
are deducted, must file under Chapter 13 rather than Chapter 7.88 The homestead exemption is limited to $125,000 for homes purchased within forty
months of filing. Beyond this limit, wealthy filers can buy large estates in
Texas and Florida to protect assets. Another loophole, which also benefits the
wealthy, permits people to set up “asset protection trusts,” which are exempt
from bankruptcy proceedings.
Other provisions make some debts—for alimony, child support, and student loans—nondischargeable; require most persons to receive credit counseling prior to filing; seek to prevent repeat bankruptcy filings; raise filing fees
and paperwork requirements; and require credit card companies to provide
more information on repayment practices.
After nine years of struggle, corporate financial interests finally prevailed
over consumer interests. The profits of money lenders will rise; life becomes
harder for debtors.89
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172
4 Policy Adoption
Personal bankruptcy filings increased sharply in 2005 as those in financial
difficulty rushed to gain relief before the new law became effective (See Table
4.1). Filings then declined only to surge beginning in 2008 because of the
burst of the housing bubble and the onset of the Great Recession. Still, those
who had supported the new law benefited because they fared better than they
would have earlier. Corporations, of course, were better treated under other
parts of the bankruptcy law. ■
CASE
STUDY
Policy Adoption: The Family Smoking
­Prevention and Tobacco Control Act
Tobacco has been cultivated in the southeastern United States
since early in the seventeenth century. The modern tobacco industry, featuring mass production and mass marketing of tobacco products, especially the
increasingly popular cigarettes, developed in the latter part of the nineteenth
century. It became vital to the economic well-being of the tobacco states.90
Tobacco has no value as food or fiber. It is an addictive product whose use
is harmful and causes serious illness. But it was widely used for recreational
purposes. As an old rhyme stated: “Some it chew, and some it smoke, and
some it up their nose do poke.” It was, however, an important source of income
to tobacco farmers and a highly profitable product for tobacco companies.
In the twentieth century, medical research began to establish a positive
link between smoking and illness.91 The tobacco companies and their supporters, who dominated the political subsystem governing tobacco policy, fended
off regulatory efforts. They were joined by tobacco growers who benefited
from a price-support program put in place by Congress in 1933.
In 1964, however, an event occurred which would produce major change
in tobacco politics. In January, 1964, the Surgeon General of the United States
released the report of his expert Advisory Committee on Smoking and Health.
In a nutshell, the Advisory Committee found a strong tie between smoking
and cancer and other illnesses.
The report of the Surgeon General’s Committee launched a campaign
against the tobacco industry that is ongoing.92 In 1965, Congress adopted the
Cigarette Labeling and Advertising Act, which required health warnings on
cigarette packages. It banned other regulation of the industry for four years.
Then in 1970, legislation banned cigarette advertising on radio and television.
More restrictions began to be imposed on tobacco. Smoking bans on commercial air flights, in public places, in schools, and elsewhere were instituted.
In 1994, Commissioner David Kessler of the Food and Drug Administration (FDA) announced an intention to regulate cigarettes because of their
addictive character from nicotine. Two years later, the FDA issued its regulations, which prohibited the sale of cigarettes to persons under eighteen and
banned various forms of advertising, labeling, promotion, and event sponsorship. The FDA’s regulations were immediately challenged in the federal courts
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Presidential Decision-Making
173
by Big Tobacco. The U.S. Supreme Court in 2000 ruled that the FDA lacked
authority under the Food, Drug, and Cosmetic Act to do this.93
The campaign against tobacco by public health advocates and anti-tobacco
activists in time bore fruit. The number of smokers declined and the demand
for tobacco fell accordingly. Tobacco farmers became worried about their economic future. Tobacco opponents saw an opportunity to pry the farmers away
from the tobacco companies. A deal was put together. A buyout to end the
tobacco price support program was combined with a smoking regulatory program run by the FDA. The Senate, in July 2004, added a buyout and regulatory program to a tax relief bill, which passed by a vote of 78 to 15. The House
Republicans, always concerned with the well-being of corporate interests,
refused to go along. The regulatory program was excised from the bill; the
buyout took effect. A consequence was a substantial reduction in the ranks of
tobacco farmers and a lessening of their political influence.
A few years passed. The Democrats regained control of the House in 2007
and renewed their push for the regulation of tobacco. Although few would
now argue that tobacco was not a dangerous product or publicly defend the
tobacco business, there were those (mostly Republicans) willing to defend
the companies’ interests. A regulatory bill cleared the House Committee on
­Energy and Commerce and passed in the House in July, 2008 by a 362-to-102
vote. In the Senate, it received approval of the Health, Education, Labor,
and Pensions (HELP) Committee but was never brought to the floor before
­Congress adjourned in late 2008. The Bush administration had threatened a
veto, but tobacco companies with the exception of Phillip Morris (the largest company) were stoutly opposed, and opposition led by “Tobacco Road”
­Senator Richard Burr (R, North Carolina) produced inaction.94
When 2009 dawned, the Democrats controlled both houses of Congress
and the Presidency. Early in the year, the House Committees on Energy and
Commerce and Oversight and Government Reform approved a bill empowering the FDA to regulate tobacco marketing and advertising, to regulate or
reduce nicotine levels but not to outlaw nicotine, and to require tobacco companies to reduce the harmful effects of their products. Most of the cost of the
program would be covered by user fees on tobacco products.95
In April, the House passed the bill by a vote of 298 to 112. A Republican ­alternative
was rejected by 142 to 284. It would have lodged authority to regulate tobacco in a
“Tobacco Harm Reduction Center” in the Department of Health and Human Services
rather than the FDA. Also, rather than restricting advertising, it would have provided
for studying the issue. Other amendments were also defeated.96
Action now shifted to the Senate HELP committee, where an amended
tobacco control bill was approved 15 to 8. A major substitute amendment had
fallen by 9 to 13. Supported by Senator Burr, who continued to fight control,
it would have created a Federal Tobacco Regulatory Authority as an independent agency. Also, it would have permitted easier market access for reducedrisk products such as “smokeless tobacco.” On the other hand, it would have
allowed marketing and advertising restrictions and required disclosure of
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174
4 Policy Adoption
tobacco product ingredients.97 Even tobacco’s supporters now acknowledged
the need for some regulation.
Two weeks were spent debating the bill on the Senate floor because its
­opponents did not give up readily. Various weakening amendments, such as
one to create an independent “tobacco harm reeducation center,” were proposed and defeated. Senate Majority Leader Harry Reid (D, Nevada) had to
use three cloture votes—to bring the bill to the floor, to limit debate on an
amendment, and on the bill itself—to get the bill passed. The final vote was 79
to 17.98 The next day (June 12), the House agreed to the Senate bill, 307 to 97.
President Obama, a sometime smoker, signed it into law, ending two decades
of legislative struggle between tobacco forces and anti-smoking activists.
We turn now to a short summary of the Family Smoking Prevention and
Tobacco Control Act. It creates a Center for Tobacco Products within the FDA
to handle implementation. Authority is bestowed on the FDA to regulate the
sale, distribution, advertising, production, and use of tobacco products to protect the public health. The FDA can regulate nicotine levels and set product
standards to eliminate harmful ingredients. It cannot, however, totally ban
either nicotine or tobacco products. Warning labels are required on tobacco
packages and advertisements. Moreover, terms such as “light,” “mild,” or
“low tar” can no longer appear on labels or in ads. Tobacco products can no
longer contain flavorings like chocolate, grape, orange, or cherry, which were
thought to make cigarettes more enticing to young people. At the insistence of
the Congressional Black Caucus, menthol was accepted, however. A substantial portion of black smokers apparently prefer menthol cigarettes. Much of
the funding to implement FSPTCA is provided by user fees levied on the producers and importers of tobacco products.99
Having just lost in the legislative arena, the tobacco companies (other than
Phillip Morris) shifted to the judicial arena, which, given the American policy process and our litigious political culture, should not startle anyone. The ­requirement
of sharp and graphic warnings on cigarette packages was attacked as a violation
of commercial freedom of speech protected by the First ­Amendment. This contention was upheld by the Court of Appeals for the D.C. Circuit in ­November 2011.
Earlier, another court of appeals had upheld the constitutionality of FSPTCA. This
makes it likely that the U.S. Supreme Court will decide the issue.100 Those who
benefit from profitable activities do not give up easily. ■
For Further
Exploration
❚ http://www.gallup.com
The Gallup Organization’s website contains public-opinion survey
­results on many issues, such as presidential approval, the state of the
economy, and various policy issues currently affecting the country.
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Notes
175
Test Your
Knowledge
Log on to the student companion website at
login.cengage.com
to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary
flashcards that review chapter concepts and terminology.
Suggested
Readings
Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S.
Congress, 2nd ed. (Washington, DC: CQ Press, 2000). General analysis and
case studies are used in this book to demonstrate that the legislative process often departs from the textbook model.
Deborah Stone, Policy Paradox: The Art of Political Decision Making (New
York: Norton, 1998). Readable, insightful, theoretical, and stimulating,
this book looks at goals, problems, and solutions in the policy process.
Diana Evans, Greasing the Wheels (New York: Cambridge University Press,
2004). Evans provides a savvy analysis of the use of pork barrel projects to
build congressional coalitions.
Graham T. Allison and Philip Zelikow, Essence of Decision: Explaining the
Cuban Missile Crisis, 2nd ed. (New York: Longman, 1999). This edition,
which draws on recently available evidence, examines decision-making
from the rational actor, organizational process, and governmental politics
perspectives.
Michael T. Hayes, Incrementalism and Public Policy (New York: Longman,
1992). Several major policymaking models are examined here as the
sources of incrementalism. Nonincremental policy change is also treated.
notes
1. Louis Fisher, Constitutional Conflicts Between Congress and the President, 4th ed.,
revised (Lawrence, KS: University Press of Kansas, 1997), pp. 152–159.
2. David H. Rosenblum and James D. Carroll, eds., Toward Constitutional
­Competence: A Casebook for Administrators (Englewood Cliffs, NJ: Prentice-Hall,
1990), pp. 54–56.
3. The leading proponent of incrementalism undoubtedly is Charles Lindblom.
See his “The Science of Muddling Through,” Public Administration Review, XIX
(1959), pp. 79–88; The Intelligence of Democracy (New York: Macmillan, 1964); The
­Policy-Making Process (Englewood Cliffs, NJ: Prentice-Hall, 1964); and, with David
Braybrook, The Strategy of Decision (New York: Free Press, 1963).
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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176
4 Policy Adoption
4. This summary draws primarily on Lindblom’s “The Science of Muddling
Through,” op. cit, and The Intelligence of Democracy, op. cit., pp. 144–148. See also
Charles E. Lindblom, “Still Muddling, Not Yet Through,” Public Administration
­Review, XLIX (November–December 1979), pp. 517–526.
5. Michael T. Hayes, Incrementalism and Public Policy (New York: Longman, 1992),
Chap. 2.
6. Amitai Etzioni, “Mixed Scanning: A ‘Third’ Approach to Decision-Making,” Public
Administration Review, XXVII (December 1967), pp. 385–392.
7. Ibid., p. 389.
8. This paragraph relies on David S. Rosenbloom and Robert S. Kravchuk, Public
­Administration, 5th ed. (New York: McGraw-Hill, 2002), p. 369.
9. A classic study is Herbert Kaufman, The Forest Ranger: A Study in Administrative
Behavior (Baltimore, MD: Johns Hopkins University Press, 1960).
10. Daniel McCool, Command of the Waters (Berkeley, CA: University of California
Press, 1987).
11. Marc Allen Eisner, Jeff Worsham, and Evan J. Ringquist, Contemporary Regulatory
Policy (Boulder, CO: Lynne Rienner Publishers, 2000), Chap. 4.
12. Robert B. Reich, ed., The Power of Public Ideas (Cambridge, MA: Ballinger, 1988).
13. Gary R. Orren, “Beyond Self-Interest,” ibid., p. 24.
14. Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: CQ
Press, 1998).
15. This paragraph draws on Charles Funderburk and Robert G. Thobaben, Political
Ideologies: Left, Center, Right, 2nd ed. (New York: HarperCollins, 1994), Chap. 5.
The quotation is on p. 113.
16. Roger H. Davidson and Walter J. Oleszek, Congress and Its Member, 8th ed.
­(Washington, DC: CQ Press, 2002), pp. 274–277.
17. Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics,
1999–2000 (Washington, DC: CQ Press, 2000), p. 211.
18. Davidson and Oleszek, op. cit., pp. 275–276.
19. David W. Brady, “Congressional Leadership and Party Voting in the McKinley Era:
A Comparison to the Modern House,” Midwest Journal of Political Science, XVI
(August 1972), pp. 439–441.
20. Richard Rose, Do Parties Make a Difference? 2nd ed. (Chatham, NJ: Chatham
House, 1984), pp. 74–91; and Edward Crowe, “Consensus and Structure in
­Legislative Norms: Party Discipline in the House of Commons,” Journal of Politics,
XLV (August 1983), pp. 907–931.
21. C. K. Rowland and Robert A. Carp, Politics and Judgment in Federal Courts
(­Lawrence, KS: University Press of Kansas, 1996), Chap. 2.
22. Discussions of the concept of representation can be found in John C. Wahlke et al.,
The Legislative System (New York: Wiley, 1962), Chap. 12; and Leroy N. Reiselbach,
Congressional Politics, 2nd ed. (Boulder, CO: Westview Press, 1995), Chap. 17.
23. See, for example, Peter Woll, American Bureaucracy, 2nd ed. (New York: Norton, 1977).
24. Michael Kinsley, “The Intellectual Free Lunch,” The New Yorker, Vol. 71 (February 6,
1995), p. 4. See also Richard Morin, “Tuned Out, Turned Off: Millions of Americans
Know Little About How Their Government Works,” Washington Post Weekly Edition,
February 5–11, 1996, pp. 6–7.
25. Alan S. Blinder, After the Music Stopped: The Financial Crisis, the Response, and the
Work Ahead (New York: Penguin Press, 2013), pp. 128 and Chap. 7. Blinder was a
former vice chairman of the Federal Reserve Board.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Notes
177
26. Benjamin I. Page and Robert Y. Shapiro, The Rational Public: Fifty Years of Trends in
Americans’ Policy Preference (Chicago, IL: University of Chicago Press, 1992), p. 394.
27. V. O. Key Jr., Public Opinion and American Democracy (New York: Knopf, 1961), p. 14.
28. Ibid., pp. 81–90.
29. Cf. John E. Mueller, “Trends in Popular Support for the Wars in Korea and
­Vietnam,” American Political Science Review, LXV (June 1971), pp. 358–375.
30. Thomas Patterson, The American Democracy, 3rd ed. (New York: McGraw-Hill,
1996), pp. 147–148.
31. Cf. Robert J. Spitzer, The Politics of Gun Control (Chatham, NJ: Chatham House,
1995), p. 118.
32. Larry M. Bartels, Unequal Democracy (Princeton, NJ: Princeton University Press,
2008), p. 3.
33. Nick Kotz, Let Them Eat Promises: The Politics of Hunger in America (Englewood
Cliffs, NJ: Prentice-Hall, 1969).
34. Donald R. Matthews and James A. Stimson, “The Decision-Making Approach to
the Study of Legislative Behavior.” Unpublished paper presented at the annual
meeting of the American Political Science Association (September 1969), p. 19.
35. Robert H. Salisbury, Governing America: Public Choice and Political Action (New
York: Appleton-Century-Crofts, 1973), p. 237. Chapter 13 includes a very useful
treatment of decision-making.
36. Robert A. Carp and Ronald Stidham, The Federal Courts (Washington, DC:
­Congressional Quarterly Press, 1985), p. 57.
37. Richard F. Fenno Jr., Congressmen in Committees (Boston, MA: Little, Brown,
1973), pp. 48–75.
38. Mark R. Powell, Science at EPA: Information in the Regulatory Process
­(Washington, DC: Resources for the Future, 1999), Chap. 2.
39. Samuel P. Hays, Beauty, Health, and Permanence (New York: Cambridge University
Press, 1987), p. 331.
40. Robert F. Durant, Daniel J. Fiorino, and Rosemary O’Leary eds., Environmental
Governance Reconsidered (Cambridge, MA: MIT Press, 2004), Chap. 3.
41. See Michelle Morone and Timothy W. Lohner, Sound Science, Junk Science:
­Environmental and Health Science and the Decisionmaking Process (Westport, CT:
Greenwood Publishing Group, 2002). See also Chris Mooney, The Republican War
on Science (New York: Basic Books, 2005).
42. Charles W Anderson, “The Place of Principles in Policy Analysis,” American
­Political Science Review, LXXIII (September 1979), p. 718.
43. Emmette S. Redford, Ideal and Practice in Public Administration (Tuscaloosa, AL:
University of Alabama Press, 1957), Chap. 5.
44. Cf. Robert E. Goodin, “Institutionalizing the Public Interest: The Defense of Deadlock and Beyond,” American Political Science Review, XC (June 1996), pp. 331–343.
See also Clarke E. Cochran, “Political Science and the Public Interest,” Journal of
Politics, XXXVI (May 1974), pp. 327–355.
45. Walter Lippmann, The Phantom Public (New York: Harcourt, Brace, 1925), p. 105.
Cf. Frank J. Sorauf, “The Public Interest Reconsidered,” Journal of Politics, XIX
(November 1957), pp. 616–639.
46. Richard E. Neustadt, “White House and Whitehall,” The Public Interest (Winter
1966), pp. 55–69.
47. As quoted in Roger Hilsman, The Politics of Policy Making in Defense and Foreign
Affairs (New York: Harper & Row, 1971), p. 1.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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178
4 Policy Adoption
48. The Economist, January 26, 2013, pp. 43–44.
49. The New York Times, March 15, 2013, p. A9.
50. Robert A. Dahl and Charles E. Lindblom, Politics, Economics, and Welfare (New
York: Harper & Row, 1953), p. 328. Chapters 12 and 13 present a thorough and insightful discussion of bargaining in American politics.
51. Lewis A. Froman Jr., People and Politics (Englewood Cliffs, NJ: Prentice-Hall,
1962), pp. 56–57.
52. Jeffrey H. Birnbaum and Alan S. Murray, Showdown at Gucci Gulch (New York:
Random House, 1987), pp. 146, 240–243.
53. The New York Times, September 20, 1986, p. 24.
54. Peter Burnell and Andrew Reeve, “Persuasion as a Political Concept,” British
­Journal of Political Studies, XIV (October 1984), pp. 393–410.
55. Quoted in Richard E. Neustadt, Presidential Power (New York: Wiley, 1960), pp. 9–10.
56. Morton H. Halperin, Bureaucratic Politics and Foreign Policy (Washington, DC:
Brookings Institution, 1974), p. 282.
57. Neustadt, op. cit., Chap. 3.
58. Dan Nimmo and Thomas D. Ungs, American Political Patterns, 2nd ed. (Boston, MA:
Little, Brown, 1969), p. 367.
59. Davidson and Oleszek, op. cit., p. 228.
60. A good discussion of congressional procedures can be found in Walter J. Oleszak,
Congressional Procedures and the Policy Process, 5th ed. (Washington, DC:
­Brookings Institution, 2001), Chaps. 5–8.
61. See Sarah A. Binder and Steven S. Smith, Politics or Principle: Filibustering in
the United States Senate (Washington, DC: Brookings Institution Press, 1997) and
Gregory Koger, Filibustering: A Political History of Obstruction in the House and
Senate (Chicago, IL: University of Chicago Press, 2010).
62. Thomas E. Mann and Norman J. Ornstein, It’s Even Worse than It Looks (New
York: Basic Books, 2012), pp. 84–98.
63. Ezra Klein, “Let’s Talk,” The New Yorker, January 28, 2013, pp. 24 ff; The New York
Times, January 24, 2013, p. 16A; and January 25, 2013, p. 18A.
64. Norman C. Thomas, Joseph A. Pika, and Richard A. Watson, The Politics of the
Presidency, 3rd ed. (Washington, DC: CQ Press, 1993), pp. 258–262. See also
­General Accounting Office, National Security: The Use of Presidential Directives to
Make and Implement U.S. Policy (Washington, DC: USGAO, December 1988).
65. Douglas Irwin, From Smoot-Hawley to Reciprocal Trade Agreements.
66. Kenneth R. Meyer, With the Stroke of a Pen, Executive Orders and Presidential
Power (Princeton, NJ: Princeton University Press, 2001). Cf. Ruth P. Morgan,
The President and Civil Rights: Policy-Making by Executive Order (New York:
St. ­Martin’s, 1970).
67. In this discussion, I draw on an insightful little book by Theodore C. Sorensen,
Decision-Making in the White House (New York: Columbia University Press, 1963).
Sorensen served as Special Counsel to President John F. Kennedy.
68. Cf. George Reedy, The Twilight of the Presidency, 2nd ed. (New York: New American
Library, 1987).
69. See Graham Allisons classic study, The Essence of Decision: Explaining the Cuban
Missile Crisis (Boston, MA: Little, Brown, 1971).
70. Sorensen, op. cit., p. 29.
71. Paul C. Light, The President’s Agenda, 3rd ed. (Baltimore, MD: Johns Hopkins
­University Press, 1999), pp. 36–38, 60.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
remove additional content at any time if subsequent rights restrictions require it.
Notes
179
72.George C. Edwards III and Stephen J. Wayne, Presidential Leadership: Politics and
Policy-Making, 5th ed. (New York: St. Martin’s, 1999), p. 246.
73. Wall Street Journal, May 22, 2001, p. 1.
74.Final Report, National Bankruptcy Review Commission (Washington, DC:
­October 20, 1997), Chap. 1.
75.Wall Street Journal, June 17, 1998, pp. 1, 9; Donald L. Bartlett and James B. Steele,
“Soaked by Congress,” Time, May 15, 2000, pp. 64–75.
76. Wall Street Journal, May 8, 2002, p. A4.
77. Congressional Quarterly Weekly Report, Vol. 58 (October 10, 1998), p. 2746.
78. Congressional Quarterly Weekly Report, Vol. 58 (November 14, 1998), p. 3099.
79. Congressional Quarterly Weekly Report, Vol. 60 (February 5, 2000), p. 243.
80. Wall Street Journal, March 16, 2001, p. A3.
81. Congressional Quarterly Weekly Report, Vol. 61 (November 17, 2001), p. 2743.
82. Congressional Quarterly Weekly Report, Vol. 60 (May 18, 2002), p. 1310.
83. Wall Street Journal, November 15, 2002, p. 1.
84. The New York Times, March 20, 2003, p. A24.
85. CQ Weekly, Vol. 62 (January 31, 2004), p. 297.
86.The New York Times, March 9, 2005, p. 1, and Wall Street Journal, March 8, 2005,
p. 2.
87. The New York Times, April 15, 2005, p. 14; Wall Street Journal, April 5, 2005, p. 4.
88.Michael R. Crittenden, “Bankruptcy Bill Leaves Senate, Unscathed,” CQ Weekly,
Vol. 63 (March 14, 2005), pp. 652–653.
89.Wall Street Journal, April 4, 2005, p. 1. And also Paul Krugman, “The Debt-Peonage
Society,” The New York Times, March 8, 2005, p. A23.
90.The Oxford Companion to United States History, ed. Paul S. Boyer (New York:
­Oxford University Press, 2001), pp. 779–780.
91.A. Lee Fritschler and Catherine E. Rudder, Smoking and Politics, 6th ed. (Upper
Saddle River, NJ: Prentice-Hall, 2011), Chap. 2.
92. Martha A. Derthick, Up in Smoke, 3rd ed. (Washington, DC: CQ Press, 2012).
93.Food and Drug Administration v. Brown S. Williamson Tobacco Corp., 529 U.S. 120
(2000).
94. CQ Weekly, Vol. 66 (April 7, 2008), pp. 886–887.
95. CQ Weekly, Vol. 67 (March 23, 2009), p. 678.
96. CQ Weekly, Vol. 67 (April 6, 2009), p. 780.
97. CQ Weekly, Vol. 67 (June 15, 2009), pp. 1378–1379.
98. CQ Almanac 2009 (Washington, DC: CQ Roll Call Group, 2010), pp. 174–176.
99.Ibid. Also Roseann B. Termini, “The Family Smoking Prevention and ­Tobacco
Control Act and Public Health,” Pennsylvania Bar Association Quarterly
(­October 2010), pp. 147–162.
100.http://en.wikipedia.org/wiki/Family_Smoking_Prevention_and_Tobacco_Control_Act.
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5
Budgeting and Public
Policy
U
ntil the 1920s, national budgeting in the United States was a disjointed
activity lacking central direction. On their own initiative, departments
and agencies prepared their annual budget requests. These requests were then
assembled by the Department of the Treasury, without alteration, in a book of
estimates and transmitted to Congress for its consideration and enactment.
The president typically had little to do with agency budget requests, either
prior to or after their enactment. This haphazard and fragmented budgetary
process was satisfactory because ample funds were available to finance the
national government’s limited array of agencies and programs. Indeed, in the
later decades of the nineteenth century, the major financial problem confronting
the government was how to spend all of the revenues produced by high protective
tariffs so as to provide for their continued justification.
This rather idyllic situation evanesced after the turn of the century. The
expansion of the national government’s activities during the Progressive Era
created strong pressures on the national revenue system. The level of government
expenditures soared upward during World War I, and following the Armistice,
remained above pre-war levels. These changed conditions generated pressure
for budget reform. The executive budget, whereby the chief executive in a
government has responsibility for budget formulation, was identified as an
appropriate corrective measure.
After several years of study, reports, deliberation, and political struggle,
Congress enacted legislation creating an executive budget, only to have it vetoed by President Woodrow Wilson. The next year it was again adopted and
signed into law by President Warren G. Harding, as the Budget and Accounting Act of 1921. The executive budget came into being. Support for it emanated from two disparate sources. Conservatives and businessmen (obviously
there was much overlap) supported it as a means of retrenchment, or reducing
governmental spending. Democrats, liberals, and reformers viewed the executive budget as a way of achieving more with a given level of expenditures, as a
way of increasing government effectiveness.
180
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The Budget and Public Policy
181
The Budget and Accounting Act delegated authority to the president to
annually prepare a budget and submit it for Congress’s approval. Agencies
were prohibited from submitting funding requests directly to Congress unless
specifically requested to do so. (In the 1970s, displeased with the Nixon
administration, Congress adopted legislation directing several agencies to submit
their budget requests concurrently to itself and the executive.)1 The Bureau of
the Budget (BOB) (now the Office of Management and Budget) was created to
assist the president in budget preparation, and the General Accounting Office
was set up to handle the auditing of expenditures. Finally, each department
and agency was directed to appoint a budget officer. Reform also occurred separately in the House of Representatives, where authority over appropriations
bills, which previously had been scattered among several committees, was
consolidated into a single appropriations committee. That had long been the
practice in the Senate. Collectively, these reforms were designed to produce a
more centralized budgeting system.
The discussion in this chapter has three purposes. First, how the budget and budget decisions affect public policies is discussed. Budgeting is a
means, and a source of opportunities, for shaping the direction, intensity,
and impact of public policies. Agency budgets may be expanded, cut back,
or even “zeroed out.” Many policy issues are examined and worked over in
the budgetary process. Second, the structure and operation of the national
budgetary process—its participants, procedures, and practices—are examined. This will cast light on how budgetary decisions are made and what
influences them. Third, we discuss the political struggle to control the budget
deficit and balance the national budget, which had temporary success in the
period 1998 to 2001. Also of concern here is the national debt. Some call this
macrobudgeting. In recent years, this has become intensely political and a
major policy issue, partly symbolic, but of much importance for the operation
of the economy.
The Budget and Public Policy
Once a policy or program has been legislatively authorized, its supporters
cannot relax and rest content. Now they must strive to ensure that it is funded,
and continues to be funded, at levels sufficient to guarantee satisfactory attainment of its goals. Conversely, opponents of the policy have annual opportunities
to modify, cripple, or perhaps kill it by getting its funding reduced or eliminated.
Consequently, once substantive legislation is enacted, the political struggle over a
policy may be renewed in another arena during the appropriations process. Policy
supporters must be vigilant, lest they be sandbagged in this arena.
Rare is the public policy that can be implemented without the expenditure
of money. At a minimum, funding will be required for personnel, office space,
equipment, travel, and other operating expenses. The rigor or effectiveness of
antitrust, consumer product safety, banking regulations, industrial safety, and
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182
5 Budgeting and Public Policy
other regulatory programs depends on their levels of funding. Law Professor
Thomas McGarity comments, “The business community discovered a long
time ago that the best way to achieve regulatory relief is to starve the agencies’
budgets while maintaining the appearance of a protective regime.”
The control of illegal immigration, the maintenance of national parks, the
conducting of medical research, national defense, and the collection of taxes
by the Internal Revenue Service (IRS) are some activities that are significantly
affected by funding levels. Increases in funding for the IRS, for instance, would
enable it to collect hundreds of billions of dollars in taxes that are legally owed
but go unpaid. Why not better funding for the IRS as a budget deficit reduction
measure?
A stark example involves the Occupational Safety and Health Administration
(OSHA), which has a legislative mandate to ensure that workplaces, which number in the hundreds of thousands, are safe and healthful. It has funding, however,
only to hire enough inspectors to permit inspection of workplaces on the average
of once in every ten years, at best. Twenty-five workers were killed in 1991 by a
fire in a North Carolina food-processing plant. The building had no sprinklers,
and the fire doors could not be opened from the inside. It had never been inspected
by OSHA. In April 2013, the explosion of a chemical plant in the town of West,
Texas, killed at least fourteen people and injured many more. It had not been
inspected by OSHA since 1985.
Many important programs, such as Social Security, Medicare, Medicaid,
and unemployment compensation primarily entail transfer payments—
moving large sums of money from taxpayers to government and then to
eligible beneficiaries, who spend it on goods and services in the private economy. Money is also central to the farm income-support, highway, AMTRAK,
public-housing, medical-research, and Pell Grant programs. The proportion of
low-income people who can receive housing assistance, for instance, depends
on the amount of money made available for this purpose.
An example of how unfavorable budgetary action can cripple a policy
involves noise control. In 1972, Congress passed the Noise Control Act in
response to complaints about “noise pollution.” The law authorized the Environmental Protection Agency (EPA) to issue and enforce standards reducing the
noise coming from industrial and commercial vehicles and products (e.g., air
compressors and jackhammers) when these adversely affected human health.2
An Office of Noise Abatement and Control (ONAC) was set up in the EPA to
implement the act. During the next several years, ONAC issued standards,
coordinated noise research, and disseminated information. However, late in the
1970s, its efforts to reduce noise emanating from garbage trucks caused a major
political stink and focused adverse attention on it.
The Reagan administration in 1981 decided to terminate funding specifically for ONAC, a decision acquiesced to by the EPA leadership and, in turn,
by Congress. The ONAC, which lacked strong political allies, expired. Since
then, next to nothing has been done by the EPA to carry out the Noise Control
Act because the agency is strapped for resources to enforce its many other
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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The Budget and Public Policy
183
programs.3 America continues to be a noisy society, though local governments
sometimes act on the problem.
At the extreme, policies without funding become nullities. Thus, Congress
killed the Cold War Subversive Activities Control Program, which was an expression of the anti-communism phobia of the time, not by repealing the legislation upon which it was based but rather by ceasing to appropriate funds for
its operation. Although the Subversive Activities Control Board, which administered the program, had never succeeded in registering any subversive persons or organizations (e.g., the Communist Party), the program was a source
of symbolic comfort for some conservatives and a source of employment for a
few others for more than two decades.
Farm groups in 2002 finally secured the enactment of country of origin
labeling (COOL) for meat products; fruits, vegetables, and nuts; and seafood.
Intended to promote the sale of American products rather than protect consumers, it rested on the policy notion that, if informed, consumers would
often choose domestic products over foreign products. Opponents were able
to block its implementation until 2009 through riders in appropriations
legislation.4
Here is another example. There has long been controversy over the
slaughter of horses, whether for human food, pet food, or other purposes.
Some Europeans have a taste for horse meat, but to Americans, horses
are pets, not food. In 2007, a rider in an Agricultural Appropriations Act
provided that funds could not be spent on the United States Department
of Agriculture (USDA) inspection of plants slaughtering horses. Without
inspection the plants could not operate. Seemingly, the protectors of horses
had prevailed. In 2011, however, the rider mysteriously disappeared. The
controversy over horse slaughter has resumed, albeit beyond the visibility
of most people.
Money is not always trump, however. Some public policies entail little
or no expenditure of money, or may even prohibit its expenditure. What can
be called prohibitory policies—those which impose bans on such actions as
fetal-tissue research, human cloning, prayer in the public schools, and the
taking of some migratory birds—have sometimes produced major political
controversies. Money is not really the issue here, nor is money involved
in the Defense of Marriage Act (1996), in which Congress declared that a
state does not legally have to recognize a same-sex marriage performed in
another state.
Some of the policies discussed in this book—the War Powers Resolution,
family and medical leaves, and personal bankruptcy—are little affected by
budgetary action. These policies, and others similar to them, are unlikely to
receive much attention in the budgetary process. They will usually be dealt
with in other policy arenas.
The national budget has grown greatly in size and complexity in recent
decades. In 1960, federal expenditures totaled $92.2 billion. When Lyndon
Johnson became president in late 1964, he strove to keep the budget below
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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184
5 Budgeting and Public Policy
the $100 billion milestone. By 2012 it had soared to over $3 trillion. Even
when inflation is taken into account, the budget has more than quadrupled.
New policies and programs have been added and existing programs expanded
during these decades. In 1960, for example, Medicare and Medicaid did not
exist; and Social Security outlays were quite modest, since many people died
before reaching retirement age, especially those in the working class.
Much of the growth in expenditures is accounted for by a few policy
areas—national defense, social and income security, medical care, and interest
on the national debt. Table 5.1 portrays expenditure patterns for several
functional (or policy) areas from 1950 to 2010. It deserves a close look.
In addition to providing details on major areas of spending and growth,
the table indicates how spending patterns vary with changing policy
preferences. The jump in natural-resource spending in the 1970s reflects the
politics of environmental concern and the proliferation of environmentalprotection policies. Also in the 1970s, the energy crises triggered greater
spending on energy-development programs. Then, as worries about energy
supplies, especially oil, faded in the 1980s, and the Reagan administration
put more reliance on the private market, energy spending diminished markedly.
Spending for Medicare, which went into effect in 1966, has soared because
of strong support for the program, an increasing number of eligible persons,
and rapidly rising medical costs.
Table 5.1 also indicates that a small set of government activities—
national defense, income security, Social Security, Medicare, and the payment of interest on the national debt—account for three-fourths of total
national spending. Most of these activities involve direct spending (see the
following discussion) and have a lot of political support or, in the case of
interest payments on the national debt, cannot be avoided. This structural
feature of the national budget looms as a major obstacle to those wanting to
reduce government spending.
Until the 1960s, most governmental expenditures paid the direct costs
of operating government agencies and programs. Taxpayer dollars were
used mostly to pay the salaries of government employees, buy vehicles and
equipment, cover rent and building-maintenance costs, and the like. Consequently, most people were at best indirectly affected by budget decisions.
Whether appropriations were increased for the Department of Commerce
or sharply cut for the foreign-aid program had little bearing on the lives
of people in Des Moines, Detroit, Dayton, or Dixon. No longer does government spending have this distant or abstract quality. Now, much of the
budget goes directly to provide income support for retired persons, veterans, farmers, the needy, bondholders, and other claimants. Also, many corporations and communities have come to rely upon defense spending (or
contracting) for their continued prosperity. Projected and actual cutbacks
in defense spending for a few years after the end of the Cold War caused
consternation in many corporate boardrooms and communities around the
nation. They continue to do so.
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185
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48.1
7.4
11.6
—
2.6
1.6
0.5
5.4
7.0
8.0
92.2
13.7
4.1
0.8
—
2.1
1.3
0.3
8.8
4.8
9.7
45.6
1960
14.4
29.7
195.7
8.7
3.1
1.0
81.7
15.7
30.3
5.9
5.2
1970
23.3
64.7
332.3
16.6
7.4
2.9
86.5
51.2
64.7
12.9
3.1
1975
52.6
176.3
590.9
21.2
13.9
10.2
134.0
32.1
118.6
23.1
8.9
1980
129.5
109.6
946.4
26.3
13.6
5.6
252.8
129.0
188.6
65.8
25.6
1985
184.2
213.7
1,251.8
29.1
17.1
2.4
299.3
147.3
248.6
98.1
12.0
1990
232.1
217.8
1,515.9
37.9
21.9
4.9
272.1
223.8
335.9
159.9
9.7
1995
222.9
303.9
1,789.2
47.1
25.0
–0.8
294.4
253.7
409.4
197.1
36.5
2000
183.9
500.0
2,472.2
70.2
28.0
0.4
495.3
345.9
523.3
298.6
26.6
2005
108.4
41.6
14.9
693.5
622.2
683.4
369.1
17.8
2010*
220.4
685.8
3,457.1
‡“All Others” includes international affairs, science, space, transportation, education, commerce, community development, justice, health, and general government.
Source: Budget of the United States Government, Fiscal Year 2014, Historical Tables (Washington, DC: Government Printing Office, 2008), Table 3.2.
†Income security includes public assistance, food stamps, railroad and federal employee retirement benefits, and unemployment compensation.
*Estimated.
National Defense
Income Security†
Social Security
Medicare
Agriculture
Natural
Resources
Energy
Veterans’
Benefits
Net Interest
on Debt
All Others‡
Total
1950
National Government Expenditures for Selected Functions and Selected Years, 1950–2010, in Billions of Current Dollars
TABLE 5.1
186
5 Budgeting and Public Policy
These changes in the composition of the budget reflect changes in national
policy priorities. They also have important consequences for the politics of the
budgetary process. Persons directly affected by governmental programs have
organized to defend and increase their benefits and have become major participants in the budgetary process. This development has made budget decisionmaking both more political and more difficult. AARP (formerly the American
Association of Retired Persons), for instance, with its many millions of members and hundreds of staff people, strongly opposes efforts to cut back Social
Security and Medicare benefits. Even in an age of trillion-dollar budgets, there
is not enough money to meet all demands. As elsewhere in the political process, those who are of higher socioeconomic status and are organized tend to
fare better than the poor or unorganized.
The budget conveys a good overview of the government’s total set of policies
for the fiscal year it covers. In the budget, one can find or extract answers to
such policy issues as the balance between private and governmental (national)
spending, the balance between civilian and military spending, whether medical research (including AIDS research) will be accelerated or slowed, whether
welfare spending in general as well as spending for specific welfare programs
will be expanded or contracted, whether more or less regulation is planned for
surface or strip-mining, and whether more or less emphasis will be given to
environmental protection. This happens because the budgetary process, within
the framework of substantive law, is a means for making choices among competing social values and allocating resources for their attainment. The budget
is not simply a financial statement; it is also a statement of policy. Conflicts
over money are usually conflicts over policy.
The budgetary process also provides the president and Congress with an
opportunity to review periodically the various policies and programs of the
government, to assess their effectiveness, and to inquire into the manner of
their administration. Not every policy and program will be examined in detail
every year, but over a few years most, if not all, will come under scrutiny. Thus,
the budgetary process provides a continuing opportunity for exerting presidential and congressional influence and control over implementation of policies. Favored agencies and programs are likely to prosper; those under attack,
whether for wasting money, harassing citizens, or misconstruing policies, may
suffer cutbacks and restraints.
Consider the plight of the National Endowment for the Arts (NEA). Many
conservatives, inside and outside of Congress, had never been enamored with
the NEA, believing that support of the arts was not an appropriate or necessary national activity. In 1989, congressional conservatives were galvanized
because two art exhibits that they considered pornographic were sponsored by
an organization partly funded by the NEA. (Good art, as is known, is not easily
specified.) They called for “zeroing out” NEAs appropriation. With the help of
the Clinton administration and congressional supporters, the NEA was able
to survive, but at the cost of a severe cutback in its appropriation. For several
years the NEA’s funding remained flat, hovering around $100 million annually.
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Fiscal Policy
187
Only recently did the NEA’s funding begin to rebound. The conservative assault
had important consequences for the agency.
Although most of the budget decisions made during a given year are incremental, involving marginal increases or decreases in agency funds, this constraint does not diminish their importance. At a minimum, they mean that an
agency or program will continue to operate. Beyond that, incremental expansion of an agency’s funding, compounded over a number of years, can significantly enlarge its budget.
Fiscal Policy
In addition to being used to finance the government’s activities and
policies, the budget can also be used as an instrument to stabilize the economy,
to help prevent inflation or recession.5 Fiscal policy involves the deliberate use
of the government’s taxing and spending powers to stimulate or restrain the
economy by incurring budget deficits or surpluses, respectively. Briefly stated,
according to Keynesian economic theory, a budget deficit, or a larger budget
deficit, by putting more money into the hands of people and businesses, adds
to the total demand for goods and services in the economy, thereby stimulating the economy. Conversely, a budget surplus, or a smaller budget deficit, will
extract money from the economy and reduce the total demand for goods and
services, thereby imposing restraint on the economy.
Major reliance was placed on fiscal policy in the 1960s and 1970s by presidential administrations trying to stabilize the economy. However, the large
budget deficits annually incurred by the government in the 1980s and 1990s,
along with the existence of strong antitax attitudes, “neutralized” fiscal policy
by foreclosing most major changes in taxing and spending rates.6 Some argued,
however, that the deficits provided continuing stimulus to the economy. Regardless of which interpretation is more accurate, the budgetary situation shifted the
task of economic stabilization to the Federal Reserve Board (FRB) and monetary policy, which relies on manipulating the interest rate and money supply
to influence operation of the economy. The FRB has been especially concerned
with combating inflation. Conservatives favor monetary policy because they
view it as less intrusive and less likely to contribute to “big government.”
Discretionary fiscal policy came back into play to combat the major recession that began in December 2007. Monetary policy under control of the FRB
had proven insufficient though interest rates had been greatly lowered. Congressional leaders from both parties and Bush administration officials, in a spasm of
bipartisanship, quickly put together and adopted the Economic Stimulus Act in
February 2008. Intended to “jump-start” the economy, it provided for $180 billion
in one-time lump-sum tax rebates to lower- and middle-income persons and
business tax breaks to encourage investment. Most of the money went for
tax rebates.7 Senate Democrats had favored a more expansive bill, including funding for unemployment benefits and incentives for renewable energy
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188
5 Budgeting and Public Policy
initiatives. These were abandoned in the interest of speedy action and because
of ­Republican opposition.
As it turned out, the stimulus plan did not have the intended effect. Surveys
revealed that much of the rebate money either was saved or used to pay down
existing debts.8 By the time the Obama administration took office on January 20,
2009, the recession had worsened. The economy was now mired in the sharpest
downturn since the Great Depression. Unemployment was rising, reaching
8.5 percent in March, 9.8 percent in September, and finally reaching 10 percent.
Responding to President Barack Obama’s call for quick action on major economic stimulus legislation, in a few weeks, the Democratic-controlled Congress
passed the American Recovery and Reinvestment Act (ARRA). (Work had started
on the legislation weeks before the inauguration.) Although the president made
appeals for bipartisan support, the act received only three Republican votes in
the Senate and none in the House, despite the president’s appeals.
A massive, complex piece of legislation, the ARRA provided for $575 billion
in increased expenditures and $212 billion in tax cuts and rebates. 9 Some
Democrats and liberals said that a considerably larger amount was needed to
provide adequate stimulus to the sagging economy. Republicans contended it
was too large, full of pork, wasteful, even “socialistic.” They succeeded in time
in making “stimulus” an “eight-letter” word.
Expenditure programs in ARRA included infrastructure, public education,
transportation, public housing, unemployment benefits, energy efficiency and
research, and financial aid to the states. Emphasis was on activities that could
quickly get underway (or “shovel ready,” as it was sometimes put), although
these were in limited supply. Most of the tax benefits went to individuals,
although some tax breaks were awarded to businesses to placate Republicans.10
Controversy persists concerning the effects of ARRA. It is difficult to assess
or measure. However, Republican claims that it “did not create a single job”
are obviously sheer hyperbole. Jobs were created. The Great Recession would
have been worse had there been no ARRA.11
The National Budgetary Process
The national budgetary process, as well as state and local budgetary
processes, can be divided into four fairly distinct stages: preparation, authorization, execution, and audit. Auditing, which involves checking on expenditures for evidence of illegality, waste, or abuse, is handled by the Government
Accountability Office and the Offices of Inspector General located in many departments and agencies and will not be discussed here.
The president’s budget, which is supposed to be sent to Congress in February
(in 2013 it did not arrive until early April), covers a single fiscal year. The budget
year that extends from October 1, 2013, through September 30, 2014 is designated
fiscal year (FY) 2014, taking its name from the calendar year in which it ends.
Table 5.2 outlines the national budgetary process and indicates the time sequences
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The National Budgetary Process
189
TABLE 5.2
Major Steps in the National Budget Process
Formulation
of the president’s
budget for FY 2014
Agencies develop requests
for funds and submit them
to OMB. The president
makes the final decisions
on what goes into the budget.
February–
December 2012
Budget preparation
and transmittal
The budget documents are
prepared and sent to Congress.
December
2012–February 2013
Congressional
action on the budget
Congress reviews
the president’s budget,
develops its budget resolution,
and approves spending and
revenue bills.
March–September
2013
Agency officials execute the
budget as enacted into law.
October 1, 2013–
September 30, 2014
Fiscal year begins
Budget execution
October 1, 2013
Audit
Before or after the
end of the fiscal year
Source: Office of Management and Budget.
involved (ideally) for FY 2014. It should be noted that from the initiation of
budget preparation through the close of the fiscal year some thirty months elapse.
This contributes to uncertainty in fiscal planning and decision-making.
The budget also covers the nine years following the fiscal year (say 2014)
for which it is intended. These are called the “out years.” This practice is
intended to convey information on the longer term effects of budget decisions.
The further into the future, the spongier these projections are likely to be.
A broad look at the FY 2014 budget is provided in Figure 5.1.
he executive budget system set in place by the Budget
T
and Accounting Act of 1921 required agencies (Congress
and the Supreme Court are exempted) to transmit their
budget requests to the president for approval before they were sent to
Congress in a single, comprehensive budget document. The BOB was delegated
authority to “assemble, correlate, revise, reduce, or increase the estimates.” In
its early years, BOB acted on the assumption that its major task was to hold
down agency spending and ensure efficiency and economy in the operation of
the government. This orientation continues to motivate the Office of Management
and Budget (OMB).
Preparation of the national budget within the executive branch begins nine
months or so before it is sent to Congress in February. Most of the day-to-day work
in developing the budget is handled by the OMB and the executive departments
and agencies. Acting on the basis of presidential directives, the OMB provides
Executive
Preparation
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190
5 Budgeting and Public Policy
Figure 5.1
Budget for Fiscal Year 2014
Proposed Expenditures
$3.8 Trillion
Medicare
and health
25%
Estimated Revenue
$3 Trillion
Social security,
unemployment
and labor
33%
Payroll taxes
34%
Individual
income taxes
46%
Military
17%
Government
,1%
Science
1%
International
affairs
1%
Interest
on debt
6%
Veterans
benefits
4%
Corporate
income taxes
11%
Misc.
5%
Energy and
environment
1%
Transportation
4%
Food and
agriculture
4%
Customs duties
1%
Excise taxes
3%
Education
2%
Housing and
community
2%
Source: nationalpriorities.org/analysis/2013/president-obamas-fiscal-year-2014-budget/
instructions, policy guidance, and tentative budget ceilings to help the departments and agencies assemble their budget requests. The latter, which are directly and specifically affected by budget decisions, and which are normally
believers in the value and necessity of their programs, are expected to act as
the advocates of increased spending (appropriations). What they request is
subject to review and revision, upward or downward, by OMB in accordance
with the policies and programs of the president.
Because the “policies and programs” of the president are not subject to precise definition, OMB has latitude in determining what is consistent with them.
Agencies sufficiently aggrieved by OMB decisions may try to appeal them to
the president, who more often than not will uphold the OMB. Some presidents
(Richard M. Nixon, for one) have discouraged the appeal of OMB decisions,
however, thereby letting OMB make the final decisions on agency appropriations requests.
Presidents typically do not become much engaged with budgetary details.
An exception was President Bill Clinton. As budget expert Allen Schick states:
Each budget bore Clinton’s imprint: he actively participated in making budget policy was well informed on matters in dispute, and was familiar with
salient details of federal programs. . . . He made decisions concerning the
size and direction of government, the composition of tax legislation, and the
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The National Budgetary Process
191
shape of policy initiatives. He invested time in mastering the details of the
budget, meeting with department heads to discuss their budgets and to
resolve issues that remained after OMB completed its review.12
During the early years of the Reagan administration, a “top-down” budgetary process overlaid the traditional (“bottom-up”) budgetary pattern, except
for the Department of Defense. Basic budget decisions were made at the presidential level by the OMB director and others and, in effect, imposed on the departments and agencies. This sequence meant that departments and agencies
had less budgetary influence and discretion than under the former ­bottom-up
procedure. As time went on, however, the centralization of executive authority
and ideological unity necessary to make top-down budgeting workable and acceptable waned within the administration. The budgetary process then inched
back toward the traditional bottom-up pattern, in which the agencies have
more influences on the size and content of their budget requests. Whether
a subsequent presidential administration will be able to duplicate the early
­Reagan administration’s budgetary control is problematical.13
The budget sent to Congress reflects presidential decisions and priorities on
such matters as its overall size, its possible effects on the economy, its major
directions in public policy, and its allocation of funds among the major agencies and programs. Lyndon Johnson in 1967 wanted both “guns and butter”—
increased spending for both the Vietnam War and the social-welfare programs
for his Great Society. Ronald Reagan in the 1980s, on the other hand, wanted
less spending for various welfare and domestic programs and more spending for
national defense. President George Bush’s budget priorities in his first year in
office were unclear. Campaigning for the presidency, he had advocated a “flexible freeze” on spending, no new taxes, and a reduction in the budget deficit.
Although these goals were perhaps sufficient for campaign purposes, they did
not amount to a real set of priorities. Once in office, he did little to clarify them.
Unlike his father, President George W. Bush never wavered on taxes—he was
always in favor of tax cuts. However, he was not much concerned with spending and signed into law several bills providing for substantially more expenditures
than he had recommended. Toward the end of his second term he took a stronger
stance against spending increases; details, however, were beyond his purview.14
Presidential and congressional discretion in making budget decisions is
constrained by the fact that two-thirds of national expenditures are direct or
mandatory in nature and do not depend upon annual appropriations. Most
direct spending is accounted for by entitlement programs such as Social
Security, Medicare, Medicaid, food stamps, federal retirement benefits, veterans’
pensions, Guaranteed Student Loans, agricultural income-support payments,
and many grant-in-aid payments to the states. Interest payments on the
national debt, while technically not an entitlement, are clearly mandatory.
Entitlement programs are so called because everyone meeting the eligibility
standards is legally entitled to benefit payments on the basis of a formula
spelled out in law. Direct expenditures, whether entitlements or otherwise, represent
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192
5 Budgeting and Public Policy
continuing obligations and commitments that can be modified or eliminated
only if the statutes authorizing them are amended.
Entitlement programs are typically funded by permanent, open-ended appropriations—that is, the payment of benefits is authorized to all who are
eligible and apply, whatever the ultimate total may amount to. Surprisingly,
for instance, some people eligible for Medicaid benefits do not request them.
Many of the entitlement programs are indexed to the consumer price index in
order to maintain the real purchasing power of recipients. Consequently, expenditures for these programs automatically rise during inflationary periods. Much
of the indexing was put in place during the early 1970s, when inflation was low,
and consequently, automatic increases were low. As inflation became stronger,
the increases became larger and contributed to rising entitlement expenditure
levels. Sometimes referred to as “automatic government,” at the time it was instituted, indexation was a technique that policy-makers also could use to avoid
being blamed for potentially unpopular decisions.15 Entitlement-program beneficiaries have been able to mobilize strong political support for the retention of
indexation. Thus, indexation stands as another practice that inhibits the ability of
the president and Congress to control expenditures or to alter budget priorities.
Much of the one-third of national spending classified as discretionary falls
within the national security area and, as a political matter, even with the demise of the Soviet Union and the end of the Cold War, is not subject to extensive
­alteration.16 Department of Defense officials and their congressional and corporate allies successfully argued that reductions in military personnel and weapons
procurement would weaken military preparedness and the capacity of the armed
forces to simultaneously conduct two major military operations, should such be
necessary. There was also concern that military cutbacks would adversely affect
the economic well-being of localities that are home to defense contractors and
military installations. After limited success in reducing defense expenditures in
its first term, the Clinton administration shifted ground and sought increased
military spending in its second term. The September 11 terrorist attack produced
pressure for a major increase in defense spending (see Table 5.1). The decisions
to go to war in Afghanistan and Iraq further led to increased defense spending.
All of this means that when pressures develop to cut government spending,
the primary target is likely to be domestic discretionary spending, which
accounts for only about one-sixth of total spending. This money goes to support
a broad array of law-enforcement, education, regulatory, welfare, housing,
natural-resource, agricultural, and other programs—in short, much of what
government does. Spending in these areas was strongly squeezed since the
1990s because of pressure to reduce government spending in the name of deficit
reduction.
A point needs to be made explicitly here before we move on. With few
exceptions (the food stamp program is one), only discretionary spending
programs go through the appropriations process sketched out in this section.
Unless the laws on which they are based are changed, funding is automatically
provided for mandatory or entitlement programs, sufficient to meet all obligations.
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The National Budgetary Process
193
he Constitution provides in Article I that “no money
T
shall be drawn from the treasury, but in consequence of appropriations made by law,” which means appropriations
legislation enacted by Congress. To begin, two distinct steps are usually involved
in the funding of public policies and programs. First, substantive legislation has
to be enacted establishing a policy or program (e.g., the Clean Water Act) and
authorizing the expenditure of money in its support. Second, money actually has
to be made available for the policy or program by the adoption of appropriations
legislation. The House has had a rule since 1833 stating that “no appropriation
shall be reported in any general appropriations bill, or be in order as an amendment
thereto, for any expenditure not previously authorized by law.” (This rule, like
other congressional rules, is sometimes waived.)
Authorization legislation is handled by the substantive or legislative committees (such as Agriculture, Commerce, and Armed Services), and appropriations
legislation is the domain of the House and Senate Appropriations Committees.
Programs for which funding is authorized sometimes either go unfunded or are
funded at levels lower than those authorized. The foreign-aid program has frequently been funded below its authorized level. Different committees, members,
and processes in Congress can produce different policy results.
The legislative committees have sometimes circumvented the appropriations committees and the obstacles they represent by resorting to “backdoor
spending,” which takes a number of forms. Backdoor spending may involve
authorizing an agency to borrow money from the Treasury, which the agency
can then spend. Or it may involve authorizing an agency to contract for
purchasing goods and services. Subsequently, funds will have to be appropriated to
cover the borrowing or contracts. The alternative would be for the government
to renege on its commitments, which is highly unlikely. Entitlement spending
also falls within the backdoor category. The House Appropriations Committee
has been especially opposed to backdoor practices because they effectively
diminish the committee’s authority over agency spending.
For purposes of legislative enactment, the president’s budget, which comes
to Congress as a document of several hundred pages, is divided into twelve
appropriations bills (e.g., for defense, energy and water development, interior
and related agencies, and foreign operations; see Table 5.3). These are then
referred to the House Appropriations Committee, which by long custom acts
first on the budget. Its twelve subcommittees hold hearings, at which agency
officials and others testify in explanation and defense of their budget requests,
and otherwise do most of the detailed legislative work on the budget. In reviewing agencies and their programs, the members of Congress may seek information on topics such as these17:
Congressional
Authorization
1. Existence. Is the agency or the program necessary? Should it be modified or
retained? Abstractly, it is easy to state that ineffective agencies or programs
should be “zeroed out.” It is the rare agency or program, however, that does
not have some supporters who are intensely committed to it and may also
directly benefit from it.
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194
5 Budgeting and Public Policy
TABLE 5.3
Agriculture
Commerce–Justice–Science
Energy–Water
Financial Services
Homeland Security
Interior–Environment
Labor–Health and Human Services–Education
Legislative Branch
Military Construction–Veterans Administration
National Defense
State Department–Foreign Operations
Transportation–Housing and Urban Development
© Cengage learning
Annual Appropriations Bills
2. Objectives. What are the goals of an agency or a program? Are they the
correct ones? Are they appropriate for government? What does one decide
when goals are multiple and conflicting? Or unclear?
3. Results. What is the program accomplishing? What societal changes
(outcomes), intended or unintended, flow from it? Can the agency
demonstrate results, as required by the Government Performance and
Results Act? (See the chapter titled “Policy Impact, Evaluation, and
Change.”) Are there complaints about agency or program operations?
4. Line-item changes. Why does the agency want more money for personnel,
equipment, or other matters? Why does it cost so much to administer
a program, such as predator control or airline security? What will be
the costs of a proposed new program? What will be accomplished by an
agency or program with increased funding?
Hearings often focus on the fourth item, which involves changes in the level
of an agency’s program funding. This is both easier and more determinate than
is deciding whether a program is necessary or what a program has accomplished or might accomplish. Members appear more comfortable in dealing
with the financial aspects of agency operations. They are also much interested
in how an agency’s activities and expenditures will affect their constituents.
The subcommittees’ recommendations are usually accepted with only
minimal change by the full Appropriations Committee. In turn, its recommendations are customarily approved by the House with few changes. As a consequence of this pattern, detailed decision-making on appropriations is handled
by small groups of House members with a strong interest in the programs with
which they deal.
The Senate Appropriations Committee, to which appropriations bills
passed by the House are sent, does not examine budget requests as intensively
as does the House. Rather, the Senate Appropriations Committee tends to
focus on “items in dispute,” and serves as an appellate body to which agencies
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The National Budgetary Process
195
that have had their budget requests reduced in the House can appeal for
restoration of at least a portion of the cuts. The Senate frequently responds
positively to such pleas.
Conference committees drawn from the members of the relevant subcommittees are used to resolve the differences between the House and Senate versions of appropriations bills. Conflict resolution here often involves “splitting
the difference” between the two bills. Compromises are considerably easier to
reach on money matters than on social issues such as abortion, school prayer,
or gun control. The latter involve “moral” choices on which it is hard to compromise or divide up the difference. Because its members are more specialized
and better informed, and have more time and determination, the House usually does better than the Senate in appropriations conferences.18
The budgetary process also provides legislators with opportunities to pass
legislation that would likely not be enacted on its own by inserting it into appropriations bills. For instance, in 2000 a lobbyist persuaded Representative
Jo Ann Emerson (R, Missouri) to insert a couple of paragraphs in a 712-page
appropriations bill providing for the Data Quality Act. Almost no one else understood what was involved.19 The Data Quality Act has been used mostly to
complicate and obstruct regulatory rulemaking, as intended. Policymaking is
sometimes done by stealth.
BUDGETARY DECISION-MAKING The 1950s and 1960s were the heyday of budgetary
incrementalism.20 Economic growth made more revenue available to the government each year; consequently, most agencies requested, and the president
typically recommended, increased funding for their programs for the next
year. In incremental budgeting, an agency’s budget for the current year became
its “base”; the additional funds sought for the next year were an “increment,”
which was to be used to improve or expand its activities and which represented
its “fair share” of the government’s additional revenues. Congressional examination of agency budget requests centered on the increments; the frequent result was a congressional decision to provide an agency with more funds than
it had in the current year but less than the president’s recommendation for
the next. This permitted members of Congress to claim that they were holding
down or cutting spending at the same time that they were increasing funding
for public programs.
Incremental budgeting was depicted by its proponents as a good budgeting
process because it lessened conflict over budgetary issues, simplified budgetary
decision-making by reducing the need for information and planning, and
contributed to stability and predictability in budgeting. Critics contended that
incrementalism was a barrier to rational decision-making and change that it assumed a situation involving only public officials, and that it did not adequately
acknowledge differences among budgetary actors in power and influence.21
Incrementalism continues to substantially characterize budgetary decisionmaking, although its scope has been restricted by the growth of entitlements,
and for a time the reality of budget cutbacks altered the nature of the action.
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196
5 Budgeting and Public Policy
Budgeting for agency and program reductions, or what budget expert Allen
Schick calls decrementalism, produced conflict because of its redistributive effects.22 More for one agency frequently meant less for another. Agency officials were often pleased to be able to hold cutbacks to modest proportions. In
1995, the House Republican majority sought to make large reductions in some
agency budgets, or to eliminate entire agencies in their quest for a smaller
national government. Many of these actions were fended off or mitigated by
agency supporters in the House, Senate, or executive branch.
Most budget changes, whether incremental or decremental, continue to be
limited or marginal in size. Agencies and programs with strong political support still fare best in the appropriations process. Budgetary decision-making can
still be well-described as based on limited analysis rather than on systematic or
comprehensive analysis. Incrementalism, in short, remains alive and doing well.
Baseline budgeting, though by no means comparable to incrementalism, has
become an important aspect of budgetary decision-making. Essentially, baseline
budgeting involves the estimation of the future budget implications of current policies, taking into account inflation and uncontrollable changes such as population
growth, unemployment rates, and the extent to which people eligible for program
benefits will seek them.23 Changes in expenditures caused by new legislation or
presidential actions are omitted from baseline projections. What the baseline projection does, in short, is project, on the basis of a number of assumptions, such as
the expected inflation rate and growth in target populations, the real future costs
of current policies. This can be done for next year, the next five years, or some
other time period. It yields what are essentially imaginary numbers.
Baseline budgeting also involves making estimates of the future revenues
that will be generated by existing tax programs. These estimates will depend
upon the assumptions made about the rate of economic growth, employment
levels, and other economic variables. As with spending projections, revenue
projections will be as sound and accurate as the assumptions on which they
are based. By manipulating assumptions, officials can increase or decrease
projected future revenue and spending levels.
Although appropriate as a way for policy-makers to estimate future revenue and spending levels and the impact that policy changes will have on them,
baseline budgeting also can be used for less laudable purposes. It can be used,
for instance, to make a particular budget decision appear as a reduction or an
increase, depending on one’s preference. Take the case of the Reagan administration’s famous fiscal 1982 baseline budget reduction of $35 billion in domestic
spending. On a current law projection, which does not figure in inflation, the
amount was estimated at $10 billion, a less impressive sum. Allen Schick provides
an explanation for the choice of the larger figure:
Why did the Republicans, who only a few years earlier lambasted the current
policy [baseline] concept as biased and expansionary, embrace it in 1981, and
why did the congressional Democrats go along with this method of measuring
cutbacks? The simple but sufficient answer is that the Republicans wanted to
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The National Budgetary Process
197
magnify the reported savings, and the Democrats wanted the actual cuts to
be less than they appeared to be. The . . . baseline allowed the Republicans to
claim more savings and the Democrats to save more programs, a happy combination for politicians facing difficult choices.24
Gimmickry and symbolic action are regular components of the budgetary
process.
PRESIDENTIAL ACTION Following the completion of congressional action, appropriations bills are transmitted to the president for approval. Although these
bills were once described as “veto-proof” because the continued operation of
the government depends on the spending they authorize, recent presidents
have invalidated this bit of conventional wisdom. A number of appropriations
bills viewed as budget-busting or inflationary, or including funding for purposes not favored, have been turned down by the executive. Congress must
then either rework the appropriations bill to meet presidential objections or
seek to override the veto.
Presidents may also use their veto power more positively by threatening
to wield it on an appropriations bill under congressional consideration. This
threat may induce Congress to tailor the bill to fit presidential objectives and
avoid the veto, especially if congressional leaders think the votes are not available for an override. This is really a form of strategic bargaining, in which the
possibility of future action is used in an effort to influence current action.
Most of the nation’s governors long have had item-veto authority, which enables them to reject, or perhaps reduce, particular items in a spending bill while
approving most of the bill. This enhances their power vis-à-vis the legislature on
appropriations. In comparison, the president has had to accept or reject a budget bill in its entirety. Consequently, provisions for pork-barrel projects or other
matters objectionable to the president could get past him or her if incorporated
in general appropriations bills that he or she felt compelled to approve.
Many presidents recommended that they be given the item veto. President
Ronald Reagan, for example, frequently asserted that he would balance the
budget if Congress gave him the item veto, ostensibly by rejecting wasteful
pork-barrel projects. The Democratic majorities in Congress displayed scant
interest in this proposal. Historically, Congress has jealously guarded its power
of the purse; potentially, the item veto could produce a major shift in budgetary power from Congress to the executive.
In 1996, however, the Republican majorities in Congress, joined by many
Democrats, passed the Line-Item Veto Act. They apparently saw this as a
means of helping to bring government spending under control and balance
the budget, matters that drew much public support.25 It was provided that the
law would not take effect until 1997, by which time many Republicans thought
that President Bill Clinton would be out of office. Bad guess.
The Line-Item Veto Act authorized presidential cancellation of particular
discretionary spending items, including items in lump-sum appropriations
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198
5 Budgeting and Public Policy
that were described in the committee reports or manager’s statements accompanying spending bills; authorization of new or expanded entitlement programs;
and tax provisions affecting 100 or fewer beneficiaries. After signing the bill
into law, the president had five days in which to cancel specific items. Such
items, enumerated by the president in a special message to Congress, were
automatically vetoed unless Congress passed a “disapproval bill” reversing the
president’s cancellations. This bill was subject to a presidential veto, which in
turn could be overridden by a two-thirds vote of each house. This convoluted
procedure was sometimes called enhanced rescission.
Opponents of the item veto feared that it might be used extensively as a
pork-slashing tool or as a means of putting presidential pressure on legislators
to support his programs or face rejection of desired projects.26 As it turned out,
President Clinton made limited use of the item veto. When he did veto items,
members of both parties in Congress howled. In 1997, his vetoes of thirty-eight
projects in a military construction bill were overridden.
The constitutionality of the item veto was quickly challenged by some adversely affected parties. Reaching the U.S. Supreme Court under expedited
procedure, it was struck down by a 6-to-3 vote in June 1998.27 “If the Line-Item
Veto Act were valid, it would authorize the president to create a different law—
one whose text was not voted on by either House of Congress or presented to
the president for signature,” said Justice John Paul Stevens for the Court. “If
there is to be a new procedure in which the president will play a different role
in determining the final text of what may ‘become a law,’ such change must
come not by legislation but through the amendment procedures set forth in . . .
the Constitution.”
In its short life span, the item veto had little impact on government spending. Efforts to overcome the Court’s decision have gone nowhere.
The total amount of funds appropriated by Congress for a fiscal year does
not deviate much from the president’s recommendation. A change of 3 or
4 percent, up or down, would be exceptional. For FY 1995, for example,
President Clinton sought $1,537 billion in new spending authority; Congress
appropriated $1,540.7 billion. For some agencies and programs, however,
congressional action may differ substantially from the president’s requests,
reflecting differences in policy priorities. In 2002, for example, the Bush
administration requested a supplemental appropriation of $20 billion for
antiterrorism programs. Of this sum, $7.4 billion was allocated for defense
programs, $7.1 billion for disaster recovery in New York and other states, and
$5.5 billion for homeland security. Unsuccessful in their efforts to appropriate
a larger amount, the Senate Democrats altered the Bush request. As enacted,
the appropriation provided $3.5 for defense, $8.2 for disaster recovery, and
$8.3 billion for homeland security.
Action on all the appropriations bills, including presidential approval, is
supposed to be completed before the beginning of the fiscal year on October 1.
It is quite common, however, for some or all of the bills to be pending on that
date. Only three of the appropriations bills for FY 2009 had been adopted when
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The National Budgetary Process
199
it began on October 1, 2008. In 2012, Congress “worsted” this performance by
enactment of none of the appropriations bills by the start of FY 2013.
When this sort of inaction occurs, a continuing resolution (CR) will be
needed to preclude shutdown of the unfunded agencies and programs. Continuing rules have been used for many decades. A CR may cover a few agencies
or programs or it may take omnibus proportions and cover several or all of the
appropriations bills. Under House rules, CRs are not considered to be regular
appropriations bills. Consequently, just about anything can be stuck in them—
unauthorized appropriations, substantive legislation, pork-barrel projects—
without being subject to points of order and removed. Spending authorized
by a CR for agencies and programs is usually the lower of either the previous
fiscal year level or the president’s budget recommendation.
More often than not, Congress has not enacted all of the appropriations
bills before the beginning of the fiscal year. These unpassed bills may then be
combined in a large omnibus bill. Thus, nine of the appropriations bills for
FY 2009 were joined in a 1,100-page omnibus bill and enacted in March 2009,
some five months after the inception of the fiscal year. This practice departs
from the standard that appropriations bills should be separately enacted. It
also makes it more likely that many members will be poorly informed about
what they are voting on. Omnibus bills often serve as the vehicles for legislation (riders) that could not move independently through the legislative process.
And they were sometimes loaded down with earmarks; there were more than
8,000 in the 2009 omnibus bill. Since then, Congress has mended its ways.
Some technical aspects of budgeting now need to be confronted. An appropriations act creates budget authority (BA), which permits agencies to obligate
(or commit) themselves for the expenditure or lending of money. When the
money is actually paid out or expended, it is called an outlay. An agency must
have budget authority before it can make outlays. When Congress considers
and acts on presidential budget requests, the focus is on BA (a.k.a., appropriations). Discussion of budget deficits and surpluses, however, are concerned
with outlays (or money that is actually paid out). The money that an agency
obligates itself to pay out in a given fiscal year, however, may not actually
go to the recipient until the next year or later. Many Department of Defense
purchases of complex weapons systems may be paid to contractors over the
course of several years. Many appropriations are for the current budget year
only. If the money is not obligated, the agency loses it. Hence, “September buying” occurs. Also, budget authority may be good for a multiyear or indefinite
period of time (a “no-year” appropriation). Thus, outlays or expenditures for a
given fiscal year cannot be precisely known until after the year is over.
The relationship between appropriations and outlays is illustrated in
Figure 5.2. In a given year, FY 2014, for instance, the money spent (outlays)
will come from both that year’s budget and previous budgets (in the form
of unspent authority). Also, some of the funds appropriated for FY 2014
will actually be paid out in later years. Once money gets into the pipeline—
that is, once expenditures are authorized—tremendous pressure grows to
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200
5 Budgeting and Public Policy
Figure 5.2
Relationship of Budget Authority to Outlays for 2014 (billions of dollars)
New Authority
Recommended
for 2014
3,796
To be spent in 2014
2,858
Outlays
in 2014
3,778
To
in f be s
utu pen
re y t
ear
s
919
t
en
sp 4
e
1
b 0
To in 2
Unspent Authority
Enacted in
Prior Years
2,400
93
8
Authority
written off,
expired, and adjusted
(net)
24
To be spent in
Future Years
Unspent Authority
for Outlays in
Future Years
2,413
1,476
Source: Budget of the United States Government, Fiscal Year 2014, Analytical Perspectives (Washington, DC:
Government Printing Office, 2013), p. 130.
spend the money. If one wants to choke off government spending, the best
time to act is at the appropriations (or authorization) stage in the budgetary
process, before money enters the spending pipeline, but even then it is
politically difficult.
In the decades immediately after World
War II, the budgetary process had again become somewhat disjointed and
chaotic. Appropriations and revenues were considered separately by different committees and processes. The budget surplus or deficit for a fiscal year
was an “accidental figure,” determined only when all the appropriations bills,
considered separately, were enacted, totaled, and compared with available revenue. Dissatisfaction with this situation, concern about the rapid growth of
governmental spending and continued budget deficits, and a desire for greater
congressional attention to the fiscal-policy implications of the budget contributed to adoption of the Congressional Budget and Impoundment Control Act
of 1974.28
The budgetary reform provisions of the act provide for a congressional budget process to coordinate the decentralized process by which budget decisions in Congress had been made. This procedure involves setting
overall levels of revenues and expenditures and establishing priorities (and
spending limits) among functional areas (such as agriculture, international
relations, and transportation) included in the budget. New budget committees were created in the House and Senate to handle these tasks, subject to
approval by the full houses. To assist the budget committees in their work,
THE CONGRESSIONAL BUDGET PROCESS
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The National Budgetary Process
201
and to provide Congress with its own source of budgeting data and studies,
a Congressional Budget Office (CBO) was established. The CBO has typically been more accurate than the OMB in making budgetary estimations
and economic forecasts.
Based on their review of the president’s budget proposal, and on information from CBO and other congressional committees, the budget committees produce a concurrent budget resolution that sets overall levels of budget
authority, outlays, revenues, and the budget surplus or deficit.29 The budget
resolution also specifies spending ceilings for each of the functional areas.
It is supposed to be passed by April 15, although this is rarely achieved, and it
does not require presidential approval. The appropriations committees are
then expected to perform their scrutiny and evaluation of agency budget
requests within the policy framework provided by the budget resolution. (See
Table 5.4.) In some years, Congress has been unable to pass budget resolutions
because of House–Senate, Democratic-Republican differences.
Reconciliation legislation is subsequently adopted in most years to ensure
that the revenue goals and spending limits in the budget resolution are actually met. In the reconciliation process, the taxation and the legislative committees propose changes in existing tax laws and entitlement programs (usually
to increase revenues or cut spending by specified amounts). These proposed
changes are packaged by the budget committees into a single omnibus reconciliation bill, which must be adopted by both houses and, unlike the budget
resolution, signed into law by the president. Reconciliation, which makes permanent changes in the affected policies and programs, has been used to cut
entitlement spending, increase taxes, modify discretionary programs, and sell
government assets.30
Reconciliation was first used in 1980 under the Carter administration to
make a modest reduction in the budget deficit for FY 1981. The next year the
Reagan administration and the Republican leadership in Congress employed
TABLE 5.4
February
March 15
April 1
April 15
May–July
July–September
September
October 1
Presidential budget is sent to Congress on the first Monday of the month.
Standing committees send their budget estimates to the House and
Senate budget committees.
Budget committees report budget resolutions to the House and the Senate.
Congress adopts a concurrent resolution setting targets for revenues,
budget authorities, and outlays.
House completes action on appropriations bills.
Senate acts on appropriations bills; conference committees resolve differences; appropriations are enacted.
Reconciliation legislation enacted if needed.
Fiscal year begins; continuing resolutions are passed if all appropriations
have not been enacted.
© Cengage learning
The Congressional Budget Process
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202
5 Budgeting and Public Policy
reconciliation to impose a $35 billion cutback in baseline spending. This constitutes the most sweeping use of reconciliation to the present time.
Observers seem to agree that the new budgetary process has improved
the quality of congressional decision-making on the budget. More and better
budgetary information is available to Congress. Budget decisions are more
fully considered and debated, and members of Congress are compelled to
address the overall dimensions of the budget. The budget decision-making
process has been made more complex by the new procedures and participation by the budget committees. Conflict sometimes occurs between the
budget committees and the appropriations and tax committees. The House
Appropriations Committee, once famed for its role as “guardian of the Treasury,” and its subcommittees have consequently become more protective of
their members’ favorite agencies and programs. This change in committee
behavior illustrates one of the propositions of systems theory, namely, that
change in one part of a system will produce changes elsewhere in the system.
he obligation and actual expenditure (or outlay) of funds,
T
once appropriated, rest with the various departments
and agencies. To begin spending, however, they must first
secure an apportionment from the OMB, which is authorized by the Antideficiency Act of 1905, as amended. An apportionment distributes “appropriations
and other budgetary resources” (e.g., the authority to borrow money) to an
agency “by time periods [usually quarterly] and by activities in order to ensure
the effective use of available resources and to preclude the need for additional
appropriations.”31 The OMB may also direct agencies to set aside funds for
contingencies or not to spend funds when greater efficiency in operations or
altered needs permit savings to be achieved without restricting accomplishment
of agency goals.
The discretion that officials have in spending funds and achieving objectives is significantly affected by the language included in appropriations laws.
Executive officials prefer to have broad discretion to decide whether to spend
funds or to shift funds among programs (reprogramming). Congress does
sometimes provide agencies with “lump-sum” or very broad appropriations
that confer much spending leeway, albeit within boundaries set by the substantive legislation governing agency action.
Figure 5.3 is the section of the 2010 Agriculture Appropriation Act pertaining to the Animal and Plant Health Inspection Service (APHIS). The
amounts of money that can be expended on various programs are specified,
some limitations and conditions are imposed, and some transfer of funds from
other ­Department of Agriculture programs is permitted. Some of the money
is available to the agency until expended. This is a “no-year” appropriation.
The agency is also authorized to collect fees for some of its services and retain
them until expended. The president’s budget contains more information about
the programs and activities of APHIS.
Budget
Execution
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The National Budgetary Process
203
Figure 5.3
Appropriation for the Animal and Plant Health Inspection Service, Fiscal Year 2010
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204
5 Budgeting and Public Policy
In recent years the Congress, under Republican leadership, has frequently
included, or tried to include, specific restrictions in appropriations laws. Such
provisions are negatively phrased, that is, “None of the funds provided in this
Act shall be used for [a specified purpose].” These provisions, in effect, make
policy in the guise of spending limitations. A classic example of a limitation
provision is the Hyde amendment (named for former Representative Henry
Hyde, R, Illinois), which provides: “None of the funds appropriated under this
act shall be expended for any abortion except when it is made known to the
federal entity or official . . . that such procedure is necessary to save the life of
the mother, or that the pregnancy is the result of an act of rape or incest.” This
provision has been included in several appropriations laws.32
The committee and subcommittee reports accompanying appropriations
bills are commonly used to specify how members of Congress think funds
should be spent and to help shape policy. The following example comes from
the House Appropriations Committee’s report on the annual appropriation for
the Food Safety and Inspection Service (FSIS), located in the Department of
Agriculture. FSIS has responsibility for regulating the meat and poultry industries to ensure that meat and poultry products are safe, wholesome, and
accurately labeled.
The Committee believes a HACCP regulatory reform process is needed
to maintain the production of a clean, safe, quality meat product that
ensures consumer confidence. The Committee believes its objective of
timely implementation of regulations that make the strongest practicable
improvement in food safety is dependent upon the development of workable, scientifically sound rules. Therefore, the Committee has included
language directing the Department to convert the rulemaking on Pathogen
Reduction, Hazard Analysis and Critical Control Point (HACCP) Systems,
the so-called “Mega-Reg,” to a negotiated rulemaking procedure. The
Committee expects that the Department will be able to develop more effective food safety rules due to the quality of input this procedure will
permit regarding issues addressed in this rulemaking and related regulatory requirements. Further, the Committee directs the Department to proceed expeditiously with this rulemaking to avoid significant delay in the
promulgation of modernized meat and poultry regulations. Specifically,
the Department is expected to act promptly to initiate a negotiated rulemaking and to require a report from the negotiated rulemaking committee
within nine months of its establishment.33
The negotiated rule-making specified by the committee in its convoluted language is authorized by the Negotiated Rulemaking Act (1990). Here, it was
intended to provide meat-industry groups with greater opportunity to intervene and soften the content of new meat and poultry regulations. Designed to
reduce bacterial contamination, the new rules did not bear down as hard on
the meat-packing industry as consumer groups had hoped, though they were
better than the “poke and sniff” method. Also, the new rules could be enforced
more stoutly.
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The National Budgetary Process
205
The funding of pork-barrel projects that benefit particular localities
or groups—such as a railroad museum, a blueberry research program, research on reduction of hog manure odor, or a highway interchange—was
also frequently provided in committee reports. There it may be stated that
the committee hopes, expects, or directs that funding will be used for specified purposes. Although committee and subcommittee reports are not legally
binding on agencies, it is impolitic for officials to ignore them. Members of
Congress may subsequently call to account those who disregard committee
instructions.
The practice of presidential impoundment of funds has frequently stirred
controversy with Congress.34 The first impoundment on record was made by
President Thomas Jefferson, who withheld funds for a couple of gunboats to
operate on the Mississippi River. With the Louisiana Purchase in 1803 and
the departure of the French from the New World, there was no longer need
for them. Since then, presidents have claimed and exercised authority to prevent expenditure of funds for purposes they disagreed with on budgetary or
policy grounds. Presidents Truman and Eisenhower refused to spend funds
for military programs that they had not requested. President Lyndon Johnson
impounded billions of dollars to combat inflation, although much of what
he held back was subsequently released. Until the 1970s, impoundment was
usually done on a selective and limited basis, and although some dissatisfaction was created and voiced in Congress, major confrontations were avoided.
President Nixon, however, precipitated an intense political conflict
over impoundment that made it a high-priority item on the national policy
agenda. Following his reelection in 1972, he decided to use an administrative strategy to “take on the bureaucracy and take over the government.”
One facet of this strategy entailed extensive impoundment of appropriations
for water-pollution controls, mass transit, food stamps, medical research,
urban renewal, agricultural programs, and highway construction. These impoundments “were unprecedented in their scope and severity.”35 Numerous
rationales were provided, including the need to prevent the inflationary effects of “reckless” spending and the existence of inherent and implied executive power under the Constitution to take such action. In various instances,
however, it was apparent that presidential impoundment was simply being
used to reduce or eliminate congressionally authorized programs of which
the administration disapproved. Nearly all the impoundments were challenged by adversely affected parties and were held to be illegal by the federal
courts.36
Congress was provoked into action by the Nixon impoundments and included some controls on impoundment in the 1974 budget law. Under the act,
a deferral of expenditures, in which the executive seeks to delay or stretch
out spending until a time in the fiscal year when it is needed, could be done
unless or until either house of Congress voted to disapprove. In contrast, an
executive rescission of funds, which cancels budget authority and thus stops
the expenditure of funds, becomes effective only if, within forty-five days of
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206
5 Budgeting and Public Policy
notification, both houses pass a rescission bill. In actuality it is not always
easy to distinguish deferrals from rescissions. Overall, the new impoundment procedures gave Congress more (and the executive less) authority over
spending and made appropriations legislation more of a mandate for agencies to spend allocated funds.
In Immigration and Naturalization Service v. Chadha of 1983,37 a case involving a minor immigration matter, the Supreme Court declared unconstitutional the use of the legislative veto. The legislative veto was held to permit
Congress or its committee to disapprove rules or actions of executive agencies
and officials, such as deferral of spending, in violation of the Constitution’s
presentment clause, which requires that bills must be presented to the president for approval or veto before they become law. Did this ruling mean, then,
that the president could still engage in deferral of spending although Congress,
if it so desired, could not veto the actions? This issue came to a head when
President Reagan moved to defer expenditure of $5.1 billion for housing and
related aid to low-income people. This action was quickly contested in the
courts. In May 1986, a federal district court, later upheld by an appeals court,
ruled that the president no longer had deferral authority under the 1974 budget law. Both courts took the view that Congress would not have given deferral
authority to the president without retaining a legislative veto for itself. Hence,
when the legislative veto perished, deferral authority for the president, based
on policy or programmatic premises, also bit the dust. Deferrals based on the
Antideficiency Act are still permitted. These provide for contingencies or take
into account savings made possible through changes in requirements or efficiencies in operations.38
The problem pointed up in the controversy over deferral applies to the
budgetary process generally: What is the appropriate balance between presidential discretion and congressional control in spending? In cases of conflict,
whose judgment should prevail? It would be much easier to answer these
questions if only managerial matters were at stake. As we have seen, though,
the budget is a policy document that reflects major policy values and priorities, a characteristic that makes budgetary decision-making much more
contentious.
Among others, economists disagree about the importance of budget deficits and their impact on the economy. Historically, however, popular belief
in the desirability of a balanced federal budget has persisted. A balanced
budget has been seen as emblematic of “prudent management,” as a source
of restraint on government, and as necessary to prevent shifting the costs of
government to future generations. The notion that government, like a family,
cannot live forever beyond its means is conventional wisdom. Almost all the
American states constitutionally require an annually balanced budget. Most
public officials have thought it wise to pay homage to the goal, sooner or later,
of a balanced budget. Balancing the budget has often become a political issue,
with the “out” party criticizing the party in the White House for its failure to
balance the budget.
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The National Budgetary Process
CASE
STUDY
207
The Struggle to Balance the Budget
The national debt of the United States is a cumulation of annual budget deficits minus budget surpluses (which have been
uncommon in the last half century). Except for a brief period in the mid1830s, the nation has always had a national debt.39 In the 1960s and 1970s,
budget deficits were usually in the single-digit range, and thus did not add
much to the national debt.
Change came in the 1980s with the Reagan administration. Government
revenues declined because of a recession early in the administration and
large tax cuts, in line with supply-side economics, which Reagan embraced.
According to supply-side economics theory, tax cuts would encourage people
to work, save, and invest, and the lower tax rates would “pay for themselves.”
It did not work out that way. Spending for national defense and entitlement
programs increased. Revenues declined. The result: budgets of more than
$200 billion annually. Many considered this alarming; some said the budget
was “hemorrhaging.” The national budget was raised a record eighteen times
during Reagan’s administration (see Table 5.5).
In this section, some efforts to devise and implement policies to bring
the deficit, and the national debt, under control will be surveyed. It is a
complex story, but then, life is often not simple—except, perhaps, for the
simple-minded.
Congress adopted the Balanced Budget and Emergency Deficit Control Act
(better known as the Gramm-Rudman-Hollings Act) in December 1985. Public and congressional concern over the large budget deficits in the early 1980s
provided the context and motivation for its enactment. Efforts to reduce the
deficit by conventional budgetary procedures had been unsuccessful because
of strong partisan differences between members of Congress (especially the
Democrats) and the Reagan administration on military and social-welfare
spending as well as tax increases.
The Gramm-Rudman-Hollings (GRH) proposal was introduced in the
Senate in late September 1985 as an amendment to a bill authorizing an
increase in the national debt, which was required to enable the government to continue borrowing money to meet its spending obligations. The
amendment never received committee hearings or consideration in either
house, however, although these are customary for legislation of such importance. The proposal required the president and Congress to eliminate
the budget deficit within five years, either by regular budget procedures
or, if these were unavailing, with automatic, uniform, across-the-board
budget cuts implemented by the CBO and the OMB. Described by Senator Warren Rudman (R, New Hampshire) as “a bad idea whose time had
come,” within a couple of weeks the Republican-led Senate had passed
the measure by a 75-to-24 vote. This indicates how strongly the Senate felt
compelled to do something about the deficit, even if its action was only
symbolic.
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208
5 Budgeting and Public Policy
TABLE 5.5
Budget Receipts, Outlays, Surplus or Deficit, and Gross National Debt, Selected
Years from 1940 to 2013, in Billions of Current Dollars
Year
1940
1945
1950
1955
1960
1965
1970
1975
1980
1985
1990
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012*
2013*
Receipts
6.5
45.2
39.4
65.5
92.5
116.8
186.9
279.1
517.1
734.1
1,032.0
1,351.8
1,453.1
1,579.3
1,721.8
1,827.5
2,025.2
1,991.0
1,853.2
1,782.3
1,880.0
2,153.9
2,407.3
2,568.2
2,524.0
2,105.0
2,162.7
2,303.5
2,441.9
2,763.6
Outlays
9.5
92.7
42.6
68.4
92.3
118.2
183.6
332.3
590.9
946.3
1,253.2
1,515.8
1,560.6
1,601.3
1,652.6
1,701.9
1,788.6
1,863.9
2,011.0
2,157.6
2,290.0
2,472.2
2,655.4
2,730.2
2,983.0
3,517.7
3,457.1
3,603.1
3,652.6
3,754.2
Surplus or Deficit
22.9
247.6
23.1
24.1
0.3
21.4
3.2
22.8
253.2
2212.3
2221.2
2164.0
2107.5
222.0
69.2
125.5
236.4
127.4
2157.8
2375.3
2412.0
2318.3
2248.2
2162.0
2459.0
21,412.7
21,294.1
21,299.6
21,201.7
2990.6
National Debt
50.7
260.1
256.7
274.4
290.5
322.3
380.9
541.9
909.1
1,817.5
3,026.6
4,921.0
5,181.9
5,369.7
5,478.7
5,606.1
5,629.0
5,770.3
6,198.4
6,760.0
7,355.0
7,905.3
8,451.4
8,950.7
9,986.0
11,857.9
13,528.8
14,764.4
16,207.0
17,482.7
*Estimated
Sources: Economic Report of the President, 2013 (Washington, DC: Government Printing Office, 2013), p. 421,
Table B-78.
After much to-ing and fro-ing by the House and Senate on the bill, negotiations were entered into by a small group of congressional leaders. Meeting
in private sessions, they were able to hammer out an agreement; it was passed
by both houses and signed into law by the president in mid-December 1985.
As adopted, the GRH required that the national budget deficit be reduced
to $171.9 billion in FY 1987 and then be lowered annually by $36 billion until
it reached zero in 1991. (In 1987, the zero date was reset to 1993 because the
original targets were too difficult to reach.) At the insistence of the ­Democrats,
a number of social-welfare programs and interest on the national debt were
exempted from the automatic budget cuts, and only limited cuts were permitted for some health programs, including Medicare. These limitations indicated
congressional priorities on spending.
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The National Budgetary Process
209
If regular budget and appropriations action failed to reach the deficit
target for a year, then uniform, across-the-board reductions, divided equally
between defense programs and non-exempted domestic programs would be
imposed. Because a large portion of the budget was exempted from these
automatic reductions, the cutbacks would hit hard on non-exempt programs.
This process was called sequestration.
The GRH sequestration process did not work well. By setting a deficit
target to be reached at the beginning of a fiscal year, GRH encouraged shortterm calculations and reliance on budgetary tricks. Costs could be shifted
from the current year to an earlier or later one to improve budget figures.
Budget projections (the “rosy scenario”) could be used that met deficit targets at the beginning of the fiscal year, however, far off the mark that they
might later prove to be. As a member of Congress remarked: “The President
submits a budget that relies on very optimistic technical and economic assumptions and questionable savings proposals to meet the Gramm-Rudman
deficit target. Congress attacks the assumptions and proposals as phony,
but uses them in the budget resolution anyway.” Congress did not want to
take the political “heat” by using more accurate figures that would make it
look like a big spender.40 The Gramm-Rudman-Hollings Act became a policy
failure.
Another chapter was added to the saga of budget-deficit reduction in 1990.
By the time President Bush sent his proposed budget to Congress for FY 1991,
it appeared that the budget deficit would be at least $150 billion.41 As the
months passed, the budgetary situation worsened, partly fueled by the recession afflicting the economy. By September the situation had become ominous;
deficit predictions for the FY 1991 reached $170 billion. (The actual deficit
turned out to be $269 billion.)
During spring and summer, desultory budget negotiations between the
White House and Congress had been unproductive. President Bush continued for a time to stick with his ill-advised 1988 campaign pledge of “Read
my lips. No new taxes.” In June, under pressure from Democratic congressional leaders, he backed away from his “no new taxes” position: everything
was put on the table. As the beginning of the 1991 fiscal year neared, bargaining became more intense, and finally, agreement on a package of tax
increases and spending cutbacks was reached at the end of September. Dissatisfaction about this agreement was rife, and it was rejected in the House
by an “unholy” alliance of liberal Democrats and conservative Republicans.
The latter, led by Representative Newt Gingrich (R, Georgia), were outraged
by the president’s violation of his “no new taxes” vow.
Negotiations between the White House and Congress resumed in the context
of recriminations from both sides. At the end of October, agreement finally was
reached on a new combination of tax increases, spending reductions, and budget
procedures. With approval by both houses of Congress and the president, it became law as part of the Omnibus Budget Reconciliation Act (OBRA). Called the
Budget Enforcement Act, its provisions are summarized here.
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210
5 Budgeting and Public Policy
For 1991 to 1993, the Budget Enforcement Act (BEA) established separate limits for discretionary spending: domestic, international, and defense.
If spending exceeded the limits in an area, automatic cutbacks would be levied on all programs in that area. For 1994 and 1995, the BEA provided only
a total discretionary-spending cap. In the mandatory spending area, a payas-you-go rule (PAYGO) applied; spending increases or tax decreases were
permitted but only if offset by other spending decreases or tax increases.
These BEA rules were later extended through FY 2002. Second, the act provided for various tax increases, including five cents a gallon on gasoline and
a new 31 percent income-tax bracket. Third, new budget-deficit targets were
specified, which could be adjusted (in all likelihood, upward) when economic conditions changed. The president and Congress could also designate
“emergency spending” that was exempt from spending limitations. In all,
it was predicted that the budget agreement would reduce projected budget
deficits by $496 billion over the 1991 to 1995 period.
The budget deficit and what to do about it were major issues in the 1992
presidential campaign. Billionaire and independent candidate Ross Perot constantly harped about the need to eliminate the deficit. Democratic candidate
Bill Clinton pledged to cut the deficit in half by the end of his first term. Once
in office, however, he found this to be a daunting task. Not only did he want to
increase government spending (“investment”) for several purposes, but he also
found that the budget deficit was larger than anticipated.
Early in 1993, the Clinton administration devised a budget plan combining
tax increases (for instance, an energy tax based on the heat content of fuels
and hikes in personal and corporate income taxes) and spending cutbacks
in both discretionary and entitlement programs. The administration estimated that this plan would reduce the deficit by a total of $447 billion over a
five-year period, thereby lowering the deficit in 1997 to around $200 ­billion.
­Democrats in Congress were generally supportive of the proposal, but
­Republicans sharply criticized it for including too many tax increases and
­insufficient spending decreases, and for not reducing the deficit enough.
Over the next several months, a titanic partisan political struggle took
place in Congress, first over the adoption of a congressional budget resolution
in line with the president’s proposal and then over the enactment of reconciliation legislation to implement the budget resolution. The budget resolution
passed by partisan votes of 240 to 184 in the House and 55 to 45 in the Senate. No Republicans voted in favor of the resolution, and only a few conservative Democrats voted against it. The budget resolution called for $246 billion
in tax increases, mostly on higher-income groups, and $247 billion in spending cutbacks. The amount of spending cutbacks had been enlarged in the
House to mollify conservative Democrats.42
Reconciliation legislation was required to implement the tax increases
and entitlement spending reductions (about two-thirds of the $493 billion
total). The remainder of the spending cutbacks (those in discretionary
spending) was left to the appropriations committees. Partisan and interest-group
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The National Budgetary Process
211
conflict intensified over reconciliation because of its binding character.
Clinton administration officials, including the president and vice president,
had to do much persuading and bargaining in order to secure Democratic
majorities sufficient for its enactment, there being little hope of picking up
Republican votes.
The Omnibus Budget Reconciliation Act of 1993 was adopted by votes
of 218 to 216 in the House and 51 to 50 in the Senate. Forty-one conservative House Democrats voted against it. In the Senate, Vice President
Al Gore cast the tie-breaking vote as five Democratic senators joined
the ­opposition. In addition to the gasoline tax, the reconciliation act
increased corporate income taxes; added personal income-tax brackets
of 36 percent and 39.6 percent, which hit higher-income individuals; and
raised many user fees. Cuts were made in many spending programs, most
notably defense and Medicare. In all, the act made several hundreds of
changes in existing laws and programs.43
Although Republicans and conservative Democrats in 1994 called for additional spending cutbacks, the Clinton administration, preoccupied with such
matters as reform of the nation’s medical system that year, chose not to renew
the deficit-reduction struggle.
The Republican majorities swept into Congress by the 1994 congressional elections made not merely deficit reduction but also balancing the
budget top agenda items. They launched a two-pronged attack on the deficit. First, they sought to propose a constitutional amendment requiring
an annually balanced budget, as was called for by the House Republicans’
“Contract with America.” Readily winning approval in the House, the
amendment fell one vote short of the two-thirds approval needed in the
Senate. Proponents of the amendment contended that it was needed to
provide officials with sufficient motivation (or backbone) to balance
the budget. Opponents questioned whether this would happen. Further,
they argued that the annually balanced budget requirement would handcuff the government in dealing with economic fluctuations, especially
recessions.
Dismayed, but undaunted by the failure to pass the balanced-budget
amendment, the Republicans now trained their guns directly on the budget.
In June 1995, once again sharply split along party lines, Congress passed a
budget resolution calling for a balanced budget by the year 2002. To achieve
this goal, over a seven-year period, spending was to be reduced by a total
of $984 billion while taxes were to be cut by $245 billion. This arrangement
represented a compromise between the tax-cutting and deficit-hawk segments of the congressional Republicans.44 (The Clinton administration’s
proposed budget was ignored.)
The Republicans’ attention then turned to the complex task of drafting reconciliation legislation to put their plan into law. Work on the reconciliation bill was not completed until late in November 1995. In final
form, it specified, over a seven-year span, a reduction of $270 billion in
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212
5 Budgeting and Public Policy
Medicare, $163 billion in Medicaid, $114 billion in entitlement programs
for the poor, and a multitude of other cutbacks. The $245 billion in tax
cuts included a $500-per-child tax credit for families with incomes under
$110,000 and reductions in the capital-gains tax and various business
taxes.45 When the reconciliation bill reached President Clinton, it received
the expected veto. Denouncing the bill as extreme and wrongheaded, the
president said he would present a more acceptable proposal for balancing
the budget by 2002. Indeed, negotiations on an alternative had been underway prior to his veto.46
To back up for a bit, when FY 1996 got underway on October 1, none of
the appropriations bills had been enacted into law. Consequently, a continuing resolution providing for partial and temporary funding was enacted to
permit the government to continue operating. When that resolution expired
in November, a partial, four-day shutdown of the government occurred. In the
parlance of budgetary negotiations, this was a “train wreck.” Subsequently,
another continuing resolution was passed to permit the government to resume full operations. Also, by this time (late November) a half-dozen appropriations bills had been enacted into law.
Following President Clinton’s veto of the reconciliation bill, protracted
negotiations over balancing the budget occurred between executive officials, including the president, and congressional leaders from both parties;
these negotiations were not concluded until near the end of April 1996.
During this time span the president vetoed three appropriations bills,
another partial government shutdown lasting twenty-one days occurred,
and a dozen temporary continuing resolutions were adopted. Much acrimony, wheeling and dealing, dissembling, and bargaining accompanied the
negotiations.47
In April, with half of the 1996 fiscal year gone, five appropriations bills
not enacted, and the likelihood of an agreement on a balanced budget a
poor bet, the White House and the Republicans reached agreement on
an omnibus appropriations bill to fund much of the government for the
remainder of the fiscal year.48 Both sides could claim some success. The
Republicans succeeded in reducing discretionary spending by $20 billion
below its 1995 level, in the process cutting funding for many agencies
and programs and eliminating a substantial number of small programs.
They also got President Clinton to agree to their goal of a balanced budget in 2002 and to using the more cautious CBO figures in making budget
estimates.
For his part, President Clinton had been able to protect his priorities on
education, job training, and the environment. For example, the EPA’s budget
was cut by about 10 percent, but that was less than half of the cut that was
initially sought by the House Republicans. Also, almost all of the restrictive
riders added by House Republicans to reorient regulatory policies were
deleted. Except for agriculture, where the Federal Agricultural Improvement
and Reform (FAIR) Act removed production controls as a condition for
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The National Budgetary Process
213
receiving income supports for most farmers, no major changes were made
in entitlement programs.
When President Clinton sent his proposed budget for FY 1997 to
Congress, he called for the national budget to be balanced by 2002.
Because neither side wanted to renew the intense political struggle that
had revolved around the 1996 budget, however, the action to achieve balance was restrained. For example, the Republicans decided to try to hold
discretionary spending at its 1996 level rather than work for another
round of substantial reductions, and plans for major changes in entitlement spending and for tax reductions were deferred until after the 1996
elections.
The 1996 elections resulted in the return of Clinton to the White House
and reduced Republican majorities in Congress. This, plus continued public
support for a balanced budget, convinced both sides that they needed to deal
with one another.49 The strong economy also made reaching a budget agreement easier because it produced more revenue. Serious negotiations ensued
between Clinton administration officials and the Republican leadership. Although they were consulted, to their dismay, Democratic congressional leaders were not direct participants.
In the budget agreement concluded in May 1997, each side got some
of what it wanted. The Republicans, for instance, got larger tax cuts than
­Clinton preferred, whereas Medicare reductions, which were less than the
Republicans wanted, were more to his liking. He also got tax credits for education and additional discretionary funding. Further, it was agreed that the
budget should be balanced by FY 2002. The spending caps initiated in 1990
were continued until then.50
The May agreement provided only the outlines of a deal; it became necessary to incorporate it in specific legislation. This task was complicated
by disputes over what actually had been agreed upon (apparently there
was no note-taker present). Also, most House Democrats were opposed to
the agreement. The final terms of the agreement were incorporated in two
reconciliation bills, which became law in August 1997. It was estimated
that the Balanced Budget Act, for spending, and the Taxpayer Relief Act,
for tax changes, together would reduce budget deficits by $204 billion over
a five-year period.
The balanced budget arrived sooner than expected. The budget for FY 1998
produced a $69 billion surplus; surpluses followed for the next three fiscal
years (see Table 5.5). Predictions of budget surpluses for the next decade and
beyond replaced pessimism about the effects of budget-deficit reduction efforts
and predictions of budget deficits for years to come. The CBO, which has a
better record on these matters than the OMB, in early 1999 forecast that
budget surpluses for the 2000–2010 period would cumulate to $2.6 trillion
dollars. The future looked even better early in 2001 when OMB and CBO both
forecast a cumulative surplus of $5.6 trillion for the next decade. (Almost as
far “as the eye could see.”)
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214
5 Budgeting and Public Policy
This reversal in budgetary fortunes was the product of several factors.
First was the cumulative impact of the 1990 budget agreement, the Clinton
administration’s 1993 budget-deficit reduction plan, and the 1997 ClintonRepublican agreement. All together, these actions provided for considerably
more than a trillion dollars in budget-deficit reduction.51 Second, there was
substantial growth in government revenues because of the robust economy
and the higher tax rates imposed on upper-income receivers by the 1990 and
1993 actions. Third, the strong economy operated to hold down some entitlement spending.52
Although the estimated budget projects were only projections, and projections have a way of missing the mark, many Washington officials chose to
reify them. Consequently, the problem of what to do about the budget deficit
was replaced on the policy agenda by the problem of what to do with the budget surpluses.53 Alternative proposals quickly emerged. The Clinton administration advocated using the surpluses primarily to strengthen Social Security
and pay down the national debt. Many Republicans advocated converting the
surpluses into tax cuts, both to benefit taxpayers at all income levels and to
ward off new spending programs. Liberal Democrats wanted to use some of
the surpluses for new or expanded governmental programs, especially for lowincome groups. Nor were all Republicans opposed to more spending if it went
for purposes like highways and military programs.
Spending increased, exceeding the BEA caps. This was justified by designating various expenditures, even those for the 2000 decennial census, which
is called for by the Constitution, as “emergency” spending.
Campaigning for the presidency in 2000, George W. Bush called for a massive tax cut to return some of the “people’s money” to them. Once in office,
he made tax cuts his top priority. When it became apparent that the economy
was slipping into recession in early 2001, the tax cut was declared necessary
to stimulate the economy, even though most of the proposed tax reductions
were slated to take effect several years into the future and were for upper-income
people.54 Drawing support from Republicans and moderate Democrats, the
complex measure was enacted in June 2001, amid estimates that it would
reduce taxes by $1.35 trillion over a ten-year time span. Income-tax rates
were lowered, especially for wealthier people, the estate tax was phased out,
child and family tax credits were increased, and tax exemptions for retirement
plans were increased. The law also contained a provision stating that it would
be repealed in its entirety at the end of 2010; that is, all taxes would then revert to their 2001 levels. This was a gimmick used to hold down its estimated
cost and to avoid Senate budget rules.55
The September 11 terrorist attacks on the World Trade Center towers and
the Pentagon exacerbated concerns about the state of the economy and created demands for increased spending for national defense, homeland security,
and recovery from the attacks. On September 15, Congress unanimously enacted a $40 billion emergency appropriation for response and recovery. This
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The National Budgetary Process
215
was followed in a few days by a $15 billion aid package for the beleaguered
airline industry. Increased spending for antiterrorism activity and national
defense soon followed.
The CBO and OMB projections of a $5.6 trillion ten-year budget surplus had
rested on the assumptions, among others, that there would be neither a recession
nor major changes in taxing and spending policies. Always questionable, the unrealistic character of these assumptions was revealed by the recession, the huge
tax cut, and soaring spending. Budget deficits reappeared.56 The Bush administration said that the budget deficit for FY 2002 (October 1, 2001, to September 30,
2002) would exceed $100 billion, to be followed by smaller deficits in the next
two years, after which it optimistically foresaw the return of surpluses. For its
part, the CBO in January 2002 estimated that the cumulative budget surplus for
the decade running through 2011 would be $1.6 trillion, down $4 trillion from its
forecast of a year earlier. Moreover, according to CBO, most of this surplus would
occur in the final two years of the decade, when time makes such lengthy projections most dubious.57 All of this proved false, not surprisingly.
The budget deficit reached a then-record level (in current dollars) of
$412 billion in FY 2004. Early in 2005, President Bush pledged to cut the budget
deficit in half within five years, mostly by reductions in spending, including for
popular entitlement programs.58 Tax increases of course were out of the question. Budget deficits did shrink for three years (see Table 5.5), more because of
increased revenues generated by the improving economy than because of spending cutbacks. Revenue growth tailed off, however, because of the Great Recession
that began in late 2007, the Bush administration’s tax cuts, spending increases,
and the rebates enacted to stimulate the economy. The FY 2008 budget deficit
soared to a new record high of $459 billion. But, worse was soon to come.
Democrats chose to assign major responsibility for the return of budget
deficits to the Bush tax cuts. Republicans pointed their fingers at increased
government spending, especially for domestic programs, and the recessions.
Although the Congressional Republicans had been highly vocal on the need
for balanced budgets during the Clinton years, they now muted their concerns. Vice-President Richard Cheney asserted that “Ronald Reagan proved
that deficits don’t matter.” Members of both parties supported more spending
for politically popular and preferred programs. The Republicans also continued to call for more tax cuts and, indeed, in 2003 Congress had passed another big tax cut, this one for $350 billion.59
As 2008 wore on, the economic situation became graver. The bursting of
the housing bubble that had developed in the early 2000s, which had been
fueled by reckless lending and the notion that housing prices would forever
rise, and bad investment practices combined to produce a financial crisis
in American and global credit markets. Bush administration officials urged
Congress to authorize the U.S. Treasury to spend $700 billion to stabilize
(or “bail out”) American banks. After some balkiness, Congress yielded and
passed the Emergency Economic Stabilization Act in early October 2008.
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216
5 Budgeting and Public Policy
Money was poured into banks in an effort to get the financial system on
its feet and lending again. Many billions were also committed to the ailing
American automobile industry. There was hope that in time some of the
government’s money would be paid back.60 The short run effect was to further inflate the national budget deficit. More bailout spending in the future
was a possibility.
The return of budget deficits has brought back another policy problem—
the need to raise the legal limit on the national debt from time to time to
enable the government to borrow money to meet its obligations. President
George W. Bush got Congress to raise the debt limit several times during his
tenure. Republicans are loathe to vote for debt increases, if at all, but prefer
to attach them to other legislation where they are less obvious. Democrats
have customarily supported debt increases, perhaps after engaging in some
“political theater.” Early in 2009 the debt limit was elevated to $12.104 ­trillion
(an interesting bit of precision!). More increases in the debt limit will be required as deficits continue. There really is no viable alternative. Fortunately,
­Americans and foreigners continue to be willing to lend money to the government at low interest rates.
Mid-January 2009, when the Obama administration took office, was
clearly not the best of times. If not the worst of times, it was moving in that
direction. The initial year of the administration was taken up by stimulus legislation, financial regulation, health-care reform, and more. Unemployment
was rapidly rising (and in time would reach 10 percent), entitlement spending was growing, and revenue was declining. The Great Recession was in full
force. When FY 2009 ended that fall, the budget deficit was $1.4 trillion, and
all-time record. It was to be followed by three more trillion dollar plus deficits
(see Table 5.5). It is now in order to look at some of the Obama administration deficit reduction efforts and woes.
Pressure developed in 2009 for some kind of action to deal with the
budget deficit, Senators Kent Conrad (D, South Dakota) and Judd (R, New
Hampshire), a pair of deficit hawks, advocated the creation of a bipartisan
commission to develop a plan to reduce annual deficits. In time, President
Obama gave it his support but conservatives were wary, thinking the commission might lead to tax increases. When the conrad–Gregg proposal was voted
on in January 2010, it was rejected 53 to 46, 60 votes being needed to move it
to the Senate floor. Several Republicans, who had previously been supporters
of the bipartisan commission, now voted no.
President Obama then decided to act issuing an executive order establishing a National Commission on Fiscal Responsibility and Reform. It had
six members each from the House and Senate, divided equally between
Democrats and Republicans, and six civilian members. The cochairs were
Alan Simpson, the Republican Senator from Wyoming, and Erskine Bowles,
who had served for a time as chief of staff in the Clinton administration.
They were another pair of deficit hawks. The Simpson–Bowles Commission,
as it came to be known, was to report its handiwork in December 2010.
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The National Budgetary Process
217
When the commission reported, it called for deficit reduction of $3.9 trillion
over a ten-year period.61 This would be generated by cuts in discretionary and
mandatory spending, revenue increases (mostly by eliminating some tax expenditures), and net savings in interest. Only eleven of the eighteen members gave
the report their approval. The executive order specified that fourteen favorable votes were needed for the report to be “officially” submitted to Congress.
Hence, the Simpson–Bowles report went nowhere. Simpson and Bowles later
tried to revive it. That did not take wing, either.
In May 2011, the government reached the current national debt limit.
The Treasury Department estimated that it could use extraordinary measures to meet the government’s financial obligations until August. Many
Republicans saw this as an opportunity to pressure the administration for
budget reductions in return for raising the debt limit. As the August deadline drew closer, the President, Congressional leaders, and Treasury officials
were able to reach agreement on a debt limit deal and stave off sovereign
default. The Budget Control Act, as the resulting legislation was known,
passed by a vote of 269 to 11 in the House and 76 to 24 in the Senate.
The Budget Control Act provided for several actions.62 First, the national
debt limit was immediately increased by $400 billion. Additional increases of
up to $1.7 billion were authorized as they became necessary. In all, this provided for a national debt of $16.4 trillion, enough to eliminate the need for
further increases until early 2013.
Second, it imposed statutory limits on discretionary spending totaling $917 billion for fiscal years 2012–2021. Automatic spending cuts
would be imposed whenever annual appropriations limits were exceeded.
Some emergency spending, as for the war on terror, was exempt from the
limits.
Third, the act required additional deficit reductions of no less than
$1.2 trillion over the 2012–2021 periods. A twelve-member Joint Select
Committee on Deficit Reduction was created to write legislation to accomplish these reductions. Quickly dubbed the “super committee,” it had
twelve members, three from each party in each house, selection by party
leaders. There were no restrictions on what the super committee could
recommend, but it was to report toward the end of November 2011. Close
to the deadline, it reported that it was hopelessly deadlocked. Republican
members blamed the Democrats for refusing to make changes in entitlements; Democrats said the fault was with the Republicans who would not
consider tax increases.
Fourth, the act provided that if the super committee failed to propose
legislation, automatic deficit reductions totaling $1.2 trillion for 2013–2021
would go into effect. The act specified that it would include $216 billion in
debt interest savings and $984 billion in spending cutbacks divided equally
between defense and domestic discretionary spending. (In Congressional
parlance, these automatic reductions were called sequestration.) Most
entitlement programs were exempt. It was thought, at least by some, that
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218
5 Budgeting and Public Policy
the threat of this drastic action would spur Congress to enact alternative
legislation.
Fifth, the Budget Control Act called for the House and Senate to vote on a
balanced budget amendment to the Constitution by the end of 2011. Conservative Republicans, especially in the House, had insisted on this. When the
votes were taken, almost all of the House Republicans voted for the amendment. It was well short of the two-thirds majority needed in both houses,
however.
Following the November 2012 elections, in which Barack Obama decisively won a second term, an observer, perhaps from another planet, might
have thought that the Republicans would be more willing to bargain and compromise. That was not the case. Partisan conflict now developed over what to
do about the “fiscal cliff.”63
The fiscal cliff was the combination of circumstances that included the
expiration of the Bush-era tax cuts, the end of a two percentage point reduction in payroll taxes to stimulate the economy, the termination of extended
unemployment benefits, and the inception of budget sequestration, all of
which would occur on January 1, 2013. This, it was thought, would be an
economic catastrophe, though some of its impact would not be experienced
immediately.
Negotiations between Senate leaders and Obama administration officials
got underway, but progress was at first slow. Finally, at almost the final hour,
an agreement was reached. Much credit was accorded talks between Vice
President Joseph Biden and Republican Senate leader Mitch McConnell
(R, Kentucky), who had served together in the Senate for many years and who
trusted one another. On New Year’s Day, 2013, Congress passed the American
Taxpayer Relief Act by votes of 89 to 8 in the Senate and 257 to 167 in the
House. A majority of the House Republicans opposed it. The president signed
it the next day.
The American Taxpayer Relief Act made all of the Bush-era tax cuts
permanent with one exception. For persons with taxable income above
$400,000 ($450,000 for couples) the marginal rate was set at 39.6 percent,
which it had been during the Clinton administration. Other provisions
included setting the estate tax at 40 percent of the value above $5 million;
extension of several corporate tax breaks; extension of some tax credits
for lower-income families, such as the Earned Income Tax Credit; and a
phase-out of tax credits and deductions for higher-income persons. The
two-year-old cut in payroll tax was ended and the onset of budget sequestration was delayed until March 1. The latter action ostensibly was to
give Congress an opportunity to enact an alternative. Nothing was accomplished in that matter.
On March 1, budget sequestration for FY 2013 went into effect.64 The
target figure for the remainder of the year was $85 billion, to be divided
equally between military and domestic discretionary spending. Cutbacks were required in agency activities and services. Tens of thousands
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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The National Budgetary Process
219
of children were not able to enter Head Start programs, for example.
Because a large portion of many agencies’ budgets go for personnel expenses, agencies initiated such practices as furloughing (and not paying)
many employees for a day every two weeks.
A vignette. For the Federal Aviation Administration, sequestration meant,
inter alia, reducing the availability of air traffic controllers, which caused
airport delays.65 Complaints from irritated travelers poured in. Congress
scurried to alleviate this situation and passed (by large bipartisan majorities)
legislation permitting the FAA to use funds from other accounts to restore
the air traffic control system to full strength. As someone said, all members
of Congress fly. No other agencies were authorized to take similar action.
Early on it is difficult to assess the impact of sequestration on agency
programs or on local communities where there are significant numbers of
government employees. One prediction was that sequestration would cause
the economy to “start moving more slowly.”66
On May 19, the national debt limit, which had been temporarily suspended
by congressional action in February, went back in force.67 The $16.4 trillion limit
had already been exceeded. The Treasury Department estimated it could use
various stratagems to meet the government’s obligations until sometime in the
fall of 2013.68 Some Republicans indicated that they would use this as another
opportunity to seek reductions in government spending and the deficit.
After thirty years of conflict and struggle, the budget deficit is still a major
public issue. Its resolution does not seem near. A “Grand Bargain” seems not
very likely.69
When the policy goal of a budget surplus and national debt reduction was
realized for a few years during the Clinton administration, the surpluses were
the product of tax increases, spending cutbacks, and a strong economy. Taxing
and spending changes were not easy to obtain. Partly this was because of partisan political differences, although the parties were not as polarized as they
now are. Partly, too, it was because the public, while unhappy with budget
deficits, likes neither tax increases nor reductions in favored programs. The
George W. Bush and Clinton administrations paid a heavy political price for
their tax increases. As has been said, “No good deed goes unpunished.”
Budget deficits were annual events from 1970 to 1998 (see Figure 5.4).
In a sense, people learned to live with deficits (if they were aware of them),
if not necessarily to approve of them. (After all, there is something immoral
about debt.) The nation now confronts another extended period of budget deficits and expanded national debt. (If it is any comfort, total private debt in the
United States now stands at $25 trillion.) What are the real (not alleged) policy
consequences of deficits and debts? Is there a point at which the national debt,
becomes “unsustainable” or “catastrophic”? How can this be objectively determined? If there were no national debt, in what ways would life in America be
better?—Policy riddles about which to think.
Postscript: The CBO, in May 2013, projected that the baseline budget deficit
for FY 2013 would be around $642 billion, much less than previous estimates.
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220
5 Budgeting and Public Policy
Figure 5.4
Budget Deficits or Surpluses
2.4%
300 CARTER
0
REGAN
G.BUSH
Deficit or surplus in current dollars
in billions
CLINTON
126
128
–22
–107
–203 –164
–255
–269 –290
–158
–600
–378
–6%
Deficit or sulplus
as a percentage
of GDP
3
OBAMA
0
($59) –41 –74 –79
–155
–128 –185
–150
–153
–208 –212 –221
–221
–300–2.7%
236 G.W.BUSH
69
–4.7%
–3.1%
–162
–248
–318
–413
–3
–454
–533 –583
–581 –570 –637
–900
–634
–636
–712
–6
–9
–912
–1200
–12
–12.3%
–1500
–15
–1,471
–1800
1978 '81
–1,750
'85
'89
'93
'97
'01
'05
'08
–18
'12
'19
Estimates
Source: CQ Weekly, Vol 67 (March 2, 2009), p. 473.
Further, they project the deficits will continue to decline for the next three years.
Then, barring policy changes, the budget deficits would resume their annual
­increases.70 ■
For Further
Exploration
❚ http://www.cbo.gov/
The Congressional Budget Office (CBO) website contains reports
assessing various proposed congressional policies involving the use
of appropriations. This site also provides documents such as costestimate reports on all congressional bills and official letters sent to
individual representatives and senators by the CBO.
❚ http://www.publicdebt.treas.gov/
The Bureau of the Public Debt’s website provides a useful link to statistical
information regarding the current status of the national debt.
❚ http://www.taxfoundation.org/
Maintained by the Tax Foundation, which is a nonpartisan organization
devoted to providing information on tax policies at the federal, state,
and local levels, this site contains information on recent tax laws passed
by Congress and provides discussions and statistical data on fiscal
issues.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Suggested Readings
221
❚ http://www.whitehouse.gov/omb
The homepage of the Office of Management and Budget provides access to
numerous budget-related documents, including testimony of OMB officials
before congressional committees, OMB circulars and press releases, the
current federal budget, and the Economic Report of the President.
Test Your
Knowledge
Log on to the student companion website at
login.cengage.com
to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary
flashcards that review chapter concepts and terminology.
Suggested
Readings
Aaron Wildavsky and Naomi Caiden, The New Politics of the Budgetary Process, 4th ed. (New York: Longman, 2001). The political and institutional
aspects of national budgeting in the United States are woven together
in this classic work.
Allen Schick, The Federal Budget: Politics, Policy, Process, 3rd. ed. (Washington,
DC: Brookings Institution, 2007). The leading student of the federal budget
process here describes and analyzes its operation and the consequences of
budget rules for policy decisions.
Daniel J. Palazzolo, Done Deal? The Politics of the 1997 Budget Agreement
(New York: Chatham House, 1999). A well-constructed case study of the
Clinton-Republican agreement to balance the budget.
Dennis S. Ippolito, Deficits, Debt, and the New Politics of Tax Politics (New York:
Cambridge University Press, 2012). This book provides a compact and
insightful historical analysis of fiscal policy under the Constitution,
concluding with the early years of the Obama administration.
Irene S. Rubin, Balancing the Federal Budget (New York: Chatham House,
2002). Rubin looks at efforts by Congress and the administration to balance
the budget and their sometimes-damaging consequences to agencies.
Irene S. Rubin, The Politics of Public Budgeting, 5th ed. (Washington, DC: CQ
Press, 2006). Budgeting at the national, state, and local levels is examined
in this information-packed book.
James D. Savage, Balanced Budgets and American Politics (Ithaca, NY: Cornell
University Press, 1988). This is a strong historical account of the budgetbalancing issue as a perennial source of conflict in American politics.
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222
5 Budgeting and Public Policy
notes
1. Louis Fisher, The Politics of Shared Power: Congress and the Executive, 3rd ed.
(Washington, DC: CQ Press, 1993), p. 133.
2. Gordon McKay Stevenson Jr., The Politics of Airport Noise (Belmont, CA: Duxbury
Press, 1972).
3. Sidney A. Shapiro, “Lessons from a Public Policy Failure: EPA and Noise Abatement,”
Ecology Law Quarterly, Vol. 19, no. 1 (1992), p. 1062.
4. Illinois Agri-News, January 23, 2009, p. C2. The final rule is in Federal Register,
Vol. 74 (January 15, 2009), pp. 2658ff.
5. G. Calvin Mackenzie and Saranna Thornton, Bucking the Deficit: Economic
Policymaking in America (Boulder, CO: Westview Press, 1996), Chap. 3.
6. Herbert Stein, Presidential Economics (Washington, DC: American Enterprise
Institute Press, 1994), Chap. x.
7. Richard Rubin, “Expanded Stimulus Bill Clears,” CO Weekly, Vol. 66 (February 11,
2008), pp. 390–391.
8. The New York Times, January 10, 2009, p. 11.
9. Michael Grunwald, The New New Deal (New York: Simon and Schuster, 2012).
This is a thorough look at its adoption and implementation.
10. CQ Almanac 2009 (Washington, DC: CQ-Roll Call Group, 2010), Vol. 65, pp. 7-3–7-10.
11. Alan Blinder, After the Music Stopped (New York: Penguin Press, 2013), Chap. 8;
Congressional Budget Office, “Estimates of ARRA’s Economic Impact,” http://www
.cbo.gov/publication/43014; and Mark Zandi, Paying the Price (Upper Saddle River,
NJ: FT Press, 2013), Chap. 5.
12. Allen Schick, The Federal Budget: Politics, Policy, Process, 3rd ed. (Washington, DC:
Brookings Institution Press, 2007), p. 88.
13. Hugh Heclo, “Executive Budget Making,” in Gregory B. Mills and John L. Palmer,
eds., Federal Budget Policy in the 1980s (Washington, DC: Urban Institute Press,
1984), pp. 255–291.
14. Schick, op. cit., pp. 116–117.
15. R. Kent Weaver, Automatic Government: The Politics of Indexation (Washington, DC:
Brookings Institution, 1988).
16. Cf. James L. True, “Is the National Budget Controllable?” Public Budgeting and
Finance, Vol. 15 (Summer 1995), pp. 18–32.
17. Lance L. LeLoup, Budgetary Politics, 2nd ed. (Brunswick, OH: King’s Court
Communications, 1980), p. 200.
18. Howard E. Shuman, Politics and the Budget, 2nd ed. (Englewood Cliffs, NJ: PrenticeHall, 1988), p. 79.
19. Ken Godwin, Scott H. Ainsworth, and Erik Godwin, Lobbying and Policymaking
(Los Angeles: Sage, 2013), pp. 63–65, 84–87; and Chris Mooney, The Republican
War on Science (New York: Basic Books, 2005), Chap. 8.
20. The classic statement of incremental budgeting is Aaron Wildavsky, The Politics of
the Budgetary Process (Boston, MA: Little, Brown, 1964).
21. Irene S. Rubin, The Politics of Public Budgeting, 4th ed. (Chatham, NJ: Chatham
House, 2000), pp. 127–128.
22. Allen Schick, “Incremental Budgeting in a Decremental Age,” in Albert C. Hyde, ed.,
Government Budgeting: Theory, Process, Politics (Pacific Grove, CA: Brooks/
Cole, 1992), pp. 410–425.
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Notes
223
23. This discussion draws on Schick, The Federal Budget, op. cit., pp. 66–70.
24. Allen Schick, The Capacity to Budget (Washington, DC: Urban Institute Press,
1990), p. 99.
25. Andrew Taylor, “Congress Hands President a Budgetary Scalpel,” Congressional
Quarterly Weekly Report, Vol. 56 (March 30, 1996), pp. 864–867.
26. R. W Apple Jr., “Line-Item Veto Is a Great Unknown,” The New York Times, March 27,
1996, p. 1.
27. Clinton v. City of New York, No. 97–1374, June 1998. See also Andrew Taylor, “Few
in Congress Grieve as Justices Give Line-Item Veto the Ax,” Congressional Quarterly
Weekly Report, Vol. 56 (June 27, 1998), pp. 1747–1749.
28. John W. Ellwood and James A. Thurber, “The Politics of the Congressional Budget
Process Re-Examined,” in Lawrence C. Dodd and Bruce I. Oppenheimer, eds.,
Congress Reconsidered, 2nd ed. (Washington, DC: Congressional Quarterly Press,
1981), pp. 247–251.
29. John Cranford, Budgeting for America, 2nd ed. (Washington, DC: Congressional
Quarterly Press, 1989), pp. 197–198.
30. Ibid., p. 200.
31. Budget of the United States Government, Fiscal Year 1989 (Washington, DC: U.S.
Government Printing Office, 1988), p. 6e.
32. Walter J. Oleszek, Congressional Procedures and the Policy Process, 5th ed. (Washington,
DC: CQ Press, 2001), p. 54.
33. Committee on Appropriations, “Agriculture, Rural Development, Food and Drug
Administration, and Related Agencies Appropriations Bill, 1996,” House Report
172, 104th Cong., 1st Sess., 1995, p. 39.
34. For fuller discussions, see Louis Fisher, Presidential Spending Power (Princeton, NJ:
Princeton University Press, 1975), Chaps. 7–8; and James P. Pfiffner, The President,
the Budget, and Congress: Impoundment and the 1974 Budget Act (Boulder, CO:
Westview Press, 1979).
35. Fisher, op. cit., p. 176.
36. Louis Fisher, Constitutional Conflicts Between Congress and the President, 4th ed.,
rev. (Lawrence, KS: University Press of Kansas, 1997), pp. 204–206.
37. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
38. Schick, The Federal Budget, op. cit., p. 286.
39. James D. Savage, Balanced Budgets and American Politics (Ithaca, NY: Cornell
University Press, 1988).
40. Louis Fisher, The Politics of Shared Power, 4th ed. (College Station: Texas A&M
University Press, 1998), pp. 238–239. The quotation is on p. 239.
41. The following account draws on Daniel P. Franklin, Making Ends Meet: Congressional
Budgeting in the Age of Deficits (Washington, DC: Congressional Quarterly Press, 1993);
and Congressional Quarterly Almanac 1990 (Washington, DC: Congressional Quarterly
Press, 1991), Vol. 46, pp. 111–178.
42. Congressional Quarterly Weekly Report, Vol. 51 (February 20, 1993),
pp. 355–359.
43. Congressional Quarterly Almanac, 1993 (Washington, DC: Congressional Quarterly
Press, 1994), Vol. 49, pp. 107–124.
44. Congressional Quarterly Weekly Report, June 24, 1995, p. 1814.
45. The New York Times, November 17, 1995, p. A14.
46. The New York Times, December 7, 1995, pp. 1, A14.
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224
5 Budgeting and Public Policy
47. For accounts of some of the negotiations, see Elizabeth Drew, Showdown: The
Struggle Between the Gingrich Congress and the Clinton White House (New York:
Simon & Schuster, 1996), Chaps. 16–24; and Michael Weisskopf and David Maraniss,
“Behind the Stage: Common Problems,” Washington Post National Weekly Edition,
February 5–11, 1996, pp. 9–13.
48. Congressional Quarterly Weekly Report, Vol. 54 (April 27, 1996), pp. 1155–1162.
49. This discussion draws on Lance T. LeLoup, Carolyn N. Long, and James N. Giodano,
“President Clinton’s Fiscal 1998 Budget: Political and Constitutional Paths to Balance,”
Public Budgeting and Finance, Vol. 18 (Spring 1998), pp. 3–32. See also George Hager,
“Clinton, GOP Congress Strike Historic Path to Agreement,” Congressional Quarterly
Weekly Report, Vol. 55 (May 3, 1997), pp. 993–999.
50. Ronald Elving and Andrew Taylor, “A Balanced-Budget Deal Won, A Defining
Issue Lost,” Congressional Quarterly Weekly Report, Vol. 55 (August 2, 1997),
pp. 1831–1836.
51. George Hager and Alissa J. Rubin, “Both Sides Give Some, Get Some as House
Panel Oks Resolution,” Congressional Quarterly Weekly Report, Vol. 55 (May 17,
1997), pp. 1117–1119.
52. Allen Schick, “A Surplus, If We Can Keep It,” Brookings Review, Vol. 18 (Winter
2000), pp. 36–39.
53. Alexis Simendinger and David Baumann, “Let the Good Times Roll,” National
Journal, Vol. 31 (January 30, 1999), pp. 248–253. See also Greg Hitt, “Rift Develops
in GOP Over Tax Cuts,” Wall Street Journal, February 12, 1999, p. 2A.
54. Jonathan Chait, The Big Con (Boston, MA: Houghton Mifflin, 2007).
55. Congressional Quarterly Weekly Report, Vol. 59 (June 9, 2001), pp. 1364, 1390–1394.
56. Irene Rubin, “The Great Unraveling: Federal Budgeting, 1998–2006,” Public
Administration Review, Vol. 67 (June 2007), pp. 608–617.
57. Analysis of the Congressional Budget Office’s Budget and Economic Outlook: Fiscal
Years 2003–2012 (Washington, DC: The Concord Coalition, January 24, 2002), p. 2.
58. Joseph J. Schatz and Andrew Taylor, “A Thousand Pages of Political Pain,”
Congressional Quarterly Weekly Report, Vol. 63 (February 14, 2005), pp. 366–373.
59. Bryan D. Jones and Walter Williams, The Politics of Bad Ideas (New York: Pearson
Longman, 2008), have much to say about the Bush administrations fiscal policies.
60. See “Sorting Out the Bailouts,” CO Weekly, Vol. 67 (February 23, 2009), pp. 394–409,
for a readable discussion of this complex matter.
61. National Commission on Fiscal Responsibility and Reform (Washington, DC: The White
House, December 2010).
62. Here I draw on Dennis S. Ippolito, Deficits, Debt, and the New Policy of Tax Politics
(New York: Cambridge University Press, 2012), pp. 239–243.
63. “United States Fiscal Cliff,” https://en/wikipedia.org/wiki/United_States_fiscal_cliff.
64. “Budged Sequestration in 2013,” https://en.wikipedia.org/wiki/2013_sequestration.
65. The New York Times, April 27, 2013, p. A-1.
66. Nancy Cook, “Manifest Destiny,” National Journal, Vol. 45 (March 2, 2013), p. 30.
67. The New York Times, January 16, 2012, P. A-1.
68. D. Andrew Austin and Mindy R. Levit, The Debt Limit: History and Recent Increases
(Washington, DC: Congressional Research Service, April 10, 2013).
69. David Kanim, “The Congress-Does-Nothing Deficit Reduction Plan,” Washington
Monthly, Vol. 45 (March/April, 2013), pp. 10 –11.
70. Congressional Budget Office “Updated Budget Projections: Fiscal Years 2013 to
2023” (Washington, DC: Government Printing Office, May 2013).
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6
Policy Implementation
W
hen the adoption phase of the policy process has been completed and,
for instance, a bill has been enacted into law by a legislature, we can
begin to refer to something called public policy. Policymaking is not concluded,
however, once a policy decision has been expressed in statutory or other official form. The policies that are embodied in statutes, for example, often are
rudimentary and require much additional development. Thus, the Americans
with Disabilities Act, which prohibited discrimination against the 43 million
Americans with disabilities, has required extensive rule-making to spell out
its requirements by the Equal Employment Opportunity Commission (EEOC),
the Department of Transportation, the Department of Education, the Federal
Communications Commission, and other agencies. Subsequently, they produced hundreds of pages of detailed rules in the Federal Register.1
With this qualification in mind, we turn to the policy implementation stage
of the policy process. Implementation (or administration) has been referred
to as “what happens after a bill becomes law.” More precisely, implementation
encompasses whatever is done to carry a law into effect, to apply it to the target
population (e.g., small businesses or motorcycle operators), and to achieve its
goals. The study of policy implementation is concerned with the agencies and
officials involved, the procedures they follow, the techniques (or tools) they
employ, and the political support and opposition that they encounter.2 In so doing,
it focuses attention on the day-to-day operation of government.
There is often considerable uncertainty about what a policy will accomplish,
how effective in terms of its goals it will be, or the consequences that it will have
for society. It is this uncertainty that makes the study of policy implementation
interesting and worthwhile. Policy implementation often is neither a routine nor
a very predictable process. Why some policies succeed and others fail remains a
challenging puzzle.
In actuality, it is frequently difficult, sometimes impossible, to neatly separate
a policy’s adoption from its implementation. Here again, we may find that the
line between functional activities is smudgy. Statutes sometimes do not do much
225
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226
6 Policy Implementation
beyond setting some policy goals and creating a framework of guidelines and
restrictions for their realization. Congress usually does not attempt to define fully
the intended impact of a law nor try to anticipate all of the problems and situations that may be encountered in its implementation.3 Even the goals of a statute
may not be clearly or consistently specified.
Administrative agencies are often delegated discretion or latitude to
issue rules and directives that will fill in the details of policy and make it more
specific. The Occupational Safety and Health Act of 1970 exemplifies this
pattern. Although the right of workers to a safe and healthful workplace is
generally guaranteed, the statute itself does not contain substantive health and
safety standards. Rather, the Occupational Safety and Health Administration
(OSHA), a bureau in the Department of Labor, is authorized to promulgate rules
creating specific health and safety standards. Only as this occurs do we have
meaningful and enforceable standards that can be applied to protect workers’
health and safety. In effect, within the framework provided by Congress, OSHA
both makes and implements policy on industrial health and safety. Different
units within OSHA handle the tasks of rule-making and enforcement.
Much of what agencies do during the implementation of policies may
appear to be routine, mundane, or tedious—processing requests or applications,
inspecting records, collecting information, writing reports, and so forth. Most
people may have little or no awareness of what agencies are doing unless they
are directly affected. Nonetheless, the consequences of implementation for the
content or substance of policy, and for its impact and degree of success, are every
bit as important as what transpires during the formulation and adoption stages.
Indeed, if implementation fails, then all that preceded was of no avail.
Vigorous and sometimes bitter political struggles attend the implementation of policies, such as those pertaining to environmental-pollution control,
affirmative action, and the practice of abortion. Groups that suffer losses in the
legislative arena may seek to recoup some of their losses by influencing or disrupting the administration of a policy. Thus, the automobile companies for decades
were able to delay the National Highway Traffic Safety Administration’s airbag requirement. The coal-mine industry has persistently worked to lessen the
effectiveness of both surface mining and mine-safety regulation.
A few policy decisions are essentially self-executing, such as the national government’s refusal to extend formal recognition to the government of a foreign
country, presidential decisions to veto legislation passed by Congress (especially
when it involves a pocket veto), and the National Park Service’s decision in the
early 1970s not to fight fires caused by lightning in the national parks. Such
decisions, entailing clear-cut, one-time actions, are relatively few, however.
Those who study public policy, consequently, can ill afford to neglect the implementation stage of the policy process.
Until the great expansion of social-welfare programs during the Johnson
years focused their attention on implementation (the term began to gain currency in
the 1960s), it had not been of much interest to most political and social scientists.4 The
study of implementation was made salient for political scientists by Professors
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Federalism and Implementation
227
Jeffrey L. Pressman and Aaron Wildavsky’s Implementation, a case study of
the failure in the early 1970s of a federal jobs-creation project undertaken by
the Economic Development Administration in Oakland, California.5 Since that
seminal event, political scientists have been actively researching the implementation of public policies, debating whether policies can be successfully
implemented (or administered), and, finally, striving to build systematic theories that will rigorously explain why some policies are likely to be more successfully implemented than others. They have yet to strike theoretical pay dirt,
such as identifying the specific variables critical to successful implementation.
Their labors, however, have produced a mound of implementation literature and
increased our understanding of the implementation process.6
Most of the implementation studies take either a “top-down” or “bottom-up”
approach. Top-downers focus on the actions of top-level officials, the factors affecting their behavior, whether policy goals are attained, and whether policy was
reformulated on the basis of experience. Bottom-uppers contend that this approach gives too much attention to top-level officials and either ignores or underestimates the efforts of lower-level (or “street-level”) officials to either avoid policy
or divert it to their own purposes. Implementation studies, they argue, should
focus on lower-level officials and how they interact with their clients. State and
local economic conditions, the attitudes of local officials, and the actions of
clients are among the factors affecting implementation. As one would expect,
there have also been efforts to combine these two approaches.7 Agreement has
not been reached, however, on what is the best way to study implementation.
Although drawing on this implementation literature, this chapter takes a
more traditional approach to policy implementation and opens with a survey
of some of the players in policy implementation. It then narrows its focus to
administrative agencies. Administrative organization, the political context,
policymaking patterns, and implementation techniques are taken up in order.
Along with financial resources (dealt with in Chapter 5, “Budgeting and Public
Policy”), these can be viewed as independent variables that affect policy outcomes and implementation success. The concluding section on compliance
with policy looks at the responses of those benefited or regulated. The goal of
this chapter is to provide readers with a working knowledge of the politics and
processes of policy implementation and to furnish some tools for their analysis.
Figure 6.1 provides a simplified look at the implementation process.
Federalism and Implementation
Federalism frequently complicates the implementation of national
policies. Although various policies—Social Security, commercial airline
safety, bank-deposit insurance—are handled solely by national officials, many
national policies depend significantly upon state and local governments for
grass-roots or street-level support and implementation. This holds true for
many national policies on education (both lower and higher), environmental
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228
6 Policy Implementation
Figure 6.1
The Implementation Process
Statute
Agency Rules
and Regulations
Unofficial Influences
(e.g., interest groups,
the media)
Agency Enforcement
Actions
Official Influences
(e.g., congressional
committees,
the judiciary)
Outcomes
• Intended
• Unintended
© Cengage learning
Outputs
protection, highways, social welfare, and law enforcement. 8 In such areas,
Congress has been either reluctant or unable (as in the instance of public
education) to bypass the states when it makes policy. Moreover, Congress has
found that it can shift many of the costs of national programs to states and
localities.
Cost shifting often occurred as the national government, by direction or
indirection, imposed program costs on state and local governments. As one
might guess, this brought complaints from their officials. In 1995, not long
after the Republicans gained control of Congress, the Unfunded Mandates
Reform Act passed with large bipartisan majorities. The act was intended to
ensure that the costs of mandates enacted by Congress were apparent and
to cause Congress to provide financing when intergovernmental mandates
were made law. A procedural point of order required Congress to acknowledge
it was imposing a mandate. It did not prohibit them.
This has not done much to alter Congressional behavior. Following the
adoption of UMRA, Congress has imposed scores of mandates. Many were
beyond the scope of the act, which contained several loopholes, such as
legislation included in appropriations bills. As Congress responds to pressure
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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Federalism and Implementation
229
to decrease budget deficits, unfunded mandates will help the national government lower its spending while meeting demands for action.
National legislation and agencies may provide policy goals, performance
standards, technical assistance, financial support, and more, but much of the
day-to-day administrative action necessary to apply policies to the target populations must come from the states. In most states, for example, the Environmental
Protection Agency (EPA) has delegated enforcement of its air- and water-quality
standards to state environmental agencies. This creates a bilevel implementation situation: macro-implementation and micro-implementation.9 At the macro
level, national officials must act to secure effective action by state officials. Then,
at the micro level, state officials must gain compliance from the target populations. Macro–micro implementation increases the likelihood of slippage.
The Clinton administration devised the National Environmental Performance
Partnership System (NEPPS) to give the states more flexibility in managing federal environmental programs if they show innovation and better performance in
improving environmental quality. Unfortunately, the implementation of NEPPS
fell short of expectations. EPA officials often were reluctant to modify existing
practices. The states, in turn, proved to be less open to innovation than had been
hoped. “They tended to balk at any possibility that the federal government would
establish—and publicize—serious performance measures that would evaluate
their effectiveness and determine their ability to deviate from federal controls.”10
Administrations since 2000 have displayed minimal interest in promoting NEPPS.
CASE
STUDY
T he Elementary and Secondary
Education Act
The Elementary and Secondary Education Act (ESEA) of 1965
was part of the Johnson administration’s War on Poverty. Its Title I provided
federal financial aid to the states to support better education for disadvantaged children in poor urban and rural areas. It provides a good example of
federalism and policy administration.
The social-reform advocates among its supporters thought that this
policy was intended to reduce poverty by improving the educational facilities and opportunities that state and local governments made available to
the educationally disadvantaged children of low-income families. As initially
administered by the Office of Education (now the Department of Education),
however, it was unclear to what extent the funds were actually expended on
poor children, and whether they bought services beyond the level of those
provided for other children in the districts aided. Many cases of the misdirection of funds were reported.11
A number of things contributed to this situation. Although the ESEA
clearly specified that disadvantaged children were its target population,
its legislative history provided “the semblance if not the reality of general
aid.” This ambiguity, together with the reality that reformers supporting the
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230
6 Policy Implementation
legislation did not themselves get much involved in implementation, meant
that officials in the then-Office of Education were given leeway to interpret
the legislation in accord with accepted modes of operation.
The traditional task of the Office of Education had long been to provide
assistance and advice to state and local school agencies. It was not inclined
to regulate or police their activities and consequently acted with little vigor
to ensure that Title I funds were expended as intended. Further, as noted earlier in the chapter, state and local agencies had historically dominated public
education, and they enjoyed strong political support for their hegemony. This
meant that it would have been difficult for national officials, even if they were
so inclined, to impose directives that did not mesh with local priorities.
By the end of the 1970s, however, the administration of the ESEA’s Title I
had changed markedly. New staff members in the Office of Education had
succeeded in securing much tighter supervision of spending under the program. Interest groups, such as the National Welfare Rights Organization and
the National Advisory Council for Education of Disadvantaged Children,
helped keep the program centered on the disadvantaged. Offices dealing with
compensatory education were established in most state departments of education, and they developed a stake in ensuring that funds were used for the disadvantaged. These developments made the effort to target Title I funds on the
disadvantaged much more successful. Studies indicated that Title I funds had
strengthened the educational performance of the students affected.
This change in the way the Title I program was administered aligned it
more closely with the intention of its original supporters. It was retained as a
separate program in 1981 when many other education programs were combined into an education block grant by the Education Consolidation and Improvement Act, a Reagan administration initiative.
During the Clinton administration, funding for the Title I program continued to expand. However, efforts to direct more money to districts with large
numbers of low-income pupils, and to increase accountability for the use of
federal funds, did not succeed.
The No Child Left Behind Act (NCLBA) of 2001, a complicated, lengthy, and
bipartisan statute that reauthorized for six years the ESEA is a major expansion of
federal involvement and control in public education. Promoted by the George W.
Bush administration, it was adopted by strong bipartisan congressional majorities.12 It was the administration’s signature domestic policy achievement other
than tax cuts.
The No Child Left Behind Act requires the states, as a condition for receiving federal education funding, to test students annually in grades three
through eight, and in one year of high school, on reading and mathematics.
Science tests are required for one grade each in elementary, middle, and high
schools. This testing is intended to ensure that by 2014 all students reach a
level of “academic proficiency” set by their state, including those students
with learning disabilities and those for whom English is a second language.
The states are responsible for designing and administering their tests under
the supervision of the U.S. Department of Education.
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Federalism and Implementation
231
Schools that do not make “adequate yearly progress” toward meeting the
proficiency goal for two consecutive years are deemed “in need of improvement.”
They must take such prescribed actions as permitting students to transfer to
other public schools or providing supplemental services such as tutoring.
Ultimately, a school failing to make adequate progress could be “reconstituted”—that is, turned over to state control or converted into a charter school.
The basic intent of NCLBA is to pressure the states and their more than
95,000 public schools to improve the quality of public education by increasing
their “accountability” for the use of federal funds by requiring an extensive
testing program. It builds on an effort initiated by the 1994 reauthorization of the ESEA which was only partially successful, during the Clinton
administration.
Implementation of NCLBA has been a contentious matter.13 State and
local officials complain that they were largely ignored by the Department
of Education when it drafted implementing regulations, that they have been
accorded insufficient flexibility in meeting federal mandates, and that insufficient
federal funds have been provided to cover the costs of expanded testing.
The Department of Education has responded to some complaints, such as by
making it easier for rural schools to meet the requirement that
all teachers be “highly certified.”
Of course, the states and their school districts continue to have responsibility for the day-to-day operation of the public schools and to provide most
of their funding. Currently, the federal government provides about 8 percent
of the total funding for public schools. To some, the impact of federal intervention and NCLBA is out of proportion to this amount. State officials could
reject federal funding and free themselves from controls, as some state legislatures have threatened to do.14 In actuality, however, federal money is rarely
turned down. State and local governments are often strapped for resources
and want to claim their share of federal dollars. In the education area, moreover, some states and school districts are more heavily dependent on federal
funds than are others.
Although NCLBA has led to much testing, and preparation for testing, in
public school students, and pressures for improvement, it is unclear what
impact if any this has had on the quality of education.15 Though the act was
slated to be reauthorized in 2006, this has yet to occur. Sharp disagreement
continues over what should be done to change the act; and some would prefer it be abandoned. In the early months of 2009, NCLBA was crowded off
of the agenda by the recession and the financial and energy crisis. Moreover,
it was viewed as a “political hot potato” to be avoided. It has not since been
high on the agenda, partly because of disagreement on the form change
should take.
For many national policies, such as NCLBA, successful implementation requires coordination and cooperation among a web of national, state, and local
governments and agencies. To achieve this end, national policies may have to
be tempered to better accord with state and local interests and perspectives.
Command must often yield to persuasion and bargaining. ■
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232
6 Policy Implementation
Who Implements Policy?
In the United States, as in other modern political systems, policy
implementation is formally the province of a complex array of administrative agencies, now often referred to as bureaucracies, a term that carries both
descriptive and pejorative connotations.16 Administrative agencies collect
taxes; operate the postal system, prisons, and schools; regulate banks, utility
companies, and agricultural production; construct and maintain streets and
highways; inspect food, meat, water, and drugs to ensure their safety; provide medical benefits and services; and perform many other tasks of modern
governments.
Although there are myriad complaints about agencies and bureaucrats,
their bungling and lethargy, the fact is that administration is the central process in governance—it provides action, continuity, and stability. Someone who
wants to more fully understand the nature, use, and impact of political power
cannot afford to ignore administrative processes, notably policy implementation. It has much consequence for who actually gets “what, when, and how.”17
Because they perform most of the day-to-day work of government, their
actions affect citizens more regularly and directly than those of other governmental bodies. Nevertheless, policy students would not need to spend much
time fretting about implementation except that agencies usually have much
discretion (i.e., leeway or the opportunity to choose among alternatives) in carrying out policies under their jurisdiction. Although at one time it was widely
believed that agencies automatically applied policies adopted by legislatures
and executives, this is not generally the case except in such matters as the sale
of postage stamps and the printing of currency.
A classic feature of the traditional literature of public administration was
the notion that politics and administration were separate and distinct spheres
of activity. Politics, wrote Professor Frank Goodnow in 1900, dealt with formulating the will of the state, with making value judgments, and with determining what government should or should not do, in short, with making policy.
It was to be handled by the “political” branches of government—that is, the
legislature and the executive.18 Administration, on the other hand, was concerned with implementing the “will of the state,” with carrying into effect the
decisions of the political branches. Administration dealt with questions of
fact, with what is rather than what should be, and consequently could focus
on identifying the most efficient means (or “one best way”) of implementing
policy. Were this viewpoint indeed accurate, policy analysts could end their
inquiry with the adoption of policy.
Administrative agencies often are provided with broad and ambiguous statutory mandates that leave them with much room for choice in deciding what
should or should not be done on some matter. Thus, the National Labor Relations Board (NLRB) is directed to ensure that labor and management bargain
in “good faith”; the Federal Communications Commission to license television
broadcasters for the “public interest, convenience and necessity”; the Forest
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Who Implements Policy?
233
Service to follow a “multiple-use” policy in managing the national forests that
balances the interests of lumber companies, sportsmen and sportswomen, livestock grazers, and other users; the Consumer Product Safety Commission to
ban products that present an “unreasonable hazard”; and the EPA to ensure
that the “best available technology economically achievable” is used to control
water pollution. Such statutory mandates are essentially directives to agencies to go out and make some policy. Moreover, because they possess discretion, they become the political targets of pressure groups and others seeking
to influence the content of their decisions. Consequently, agencies become embroiled in policy politics.
Frequently those who participate in the legislative process are unable or
unwilling to arrive at precise settlements among the conflicting interests on
many issues. Only by leaving some matters nebulous and unsettled can agreement on legislation be reached. Lack of time, interest, information, and expertise as well as the need for flexibility in implementation may also help explain
the delegation of broad authority to agencies. The product of these factors is
a statute couched in general language, such as that mentioned above, which
shifts to agencies the tasks of filling in the details, making policy more precise
and concrete, and trying to make more definitive adjustments among conflicting interests. Under these conditions, the administrative process becomes an
extension of the legislative process.
Although legislatures have delegated much policymaking authority to administrative agencies, it should not be assumed that legislatures cannot act with specificity. An illustration is Social Security legislation, which sets forth in explicit
terms the standards for eligibility, the levels of benefits, the amount of additional
earnings permitted, and other considerations for old-age and survivors’ benefits.
Most administrative decisions on application for these benefits simply involve
applying the legislatively set standards to the facts of the case at hand and deciding whether an applicant is entitled to retirement benefits and, if so, what the
level of benefits should be. Under such circumstances, administrative decisionmaking becomes mostly routine and is therefore unlikely to produce controversy.
In comparison, the disability standard under the Social Security program
has produced considerable controversy. Disability is loosely defined as the inability to engage in any substantial gainful activity by reason of a medically
determinable physical or mental impairment expected to result in death or to
last at least twelve months. This definition leaves much room for interpretation, conjecture, and disagreement.19 Thousands of cases involving the denial
of disability benefits are litigated in the federal courts.
Although administrative agencies are the primary implementers of public
policy, many other players may also be involved and contribute in various ways
to the execution of policies. Those examined here include the legislature, the
courts, pressure groups, and community organizations. These may be directly
involved in policy implementation or act to influence administrative agencies, or
both. By no means are agencies fully in control of the implementation process.
Here again, we find competition for power in the American political system.
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234
6 Policy Implementation
rticle II of the Constitution states that “the executive
A
Power shall be vested in a President . . . .” No explanation is
provided of what this entails. Further on, Article II says that “he shall take
Care that the Laws be faithfully executed.” This would appear to empower and
obligate the president to be involved in policy implementation.
The president, however, has a wide range of duties and obligations. These
include foreign affairs, economic policy and the wellbeing of the economy,
policy development, and ceremonial activities as chief of state, as well as
policy implementation. As Professors George Edwards and Stephen Wayne
state, “Policy implementation has had a low priority in most [recent] administrations.” They explain, “Presidents know they will receive little credit if
policies are managed well because it is very difficult to attribute effective
implementation to them personally.”20
Lyndon B. Johnson was the last president to become fairly extensively
involved in policy implementation.21 He received regular reports on agency
officials, questioned officials about their programs, made recommendations for action, and more. He had a remarkable capacity to participate
without getting bogged down in details. As an example, wage-price guideposts were used to combat inflation. Johnson “met with business groups
and labor leaders ..., made appeals in person and by telephone and telegram, suggested ‘levers’ that could be used to help induce compliance, and
encouraged and pressured his subordinates to act. No major wage-price
actions were taken without his approval.” Johnson was the quintessential
activist president.
Occasionally a president and some of his advisers may decide that a law
on the statute book is unconstitutional. What then should the president do?
Should he direct that the law not be enforced? Or should it be enforced until the courts have rendered a definitive verdict? Recently President Obama
faced this dilemma with respect to the Defense of Marriage Act (DOMA).22 He
decided the law was unconstitutional and that his administration would no
longer defend it in court. Together with his attorney general and some (but
not all) of his advisers, he concluded it should be carried out. Other presidents have acted similarly. In June 2013, the U.S. Supreme Court, in a 5 to 4
decision, declared DOMA to be unconstitutional.
Presidents now rarely participate in the details of policy implementation.
The best means that a president has for exercising control and direction over
the executive branch, for getting officials and agencies generally to act as he
wishes, is the power of appointment and removal. The president makes many
hundreds of appointments to top-level positions in the departments and agencies. The president will be careful to select persons who share his political philosophy or policy orientations. George W. Bush’s conservative appointments
to regulatory agencies and commissions (e.g., the EPA, Antitrust Division, and
Securities and Exchange) were not vigorous regulators. They did not ignore
the laws under their jurisdictions, but they did ease up on enforcement. In
contrast, Obama’s appointments to these and many other agencies were much
The President
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Who Implements Policy?
235
more activist. Thus, for instance, the EPA bore down much harder on air and
water pollution regulations.
Presidents do not often remove officials from office. It is messy and unpleasant, and seldom done. Presidential appointees generally regard following
presidential leadership as one of the rules of the game. If you can’t do what the
president wants, then you ought to get out, as a former Johnson administration official told me.
ome members of legislative bodies display much interest in
S
the implementation of policies. Indeed, Professor Theodore
Lowi holds that “the major problem and major focus of Congress is no longer
simply that of prescribing the behavior of citizens but more often that of affecting the behavior of administrators.”23 Some of the techniques used by Congress
and its members to influence administrative action and hold agencies accountable for what they do are examined here.
Committee hearings and investigations are used to gather information,
review the implementation of policies, publicize agency actions, put pressure on agency officials, and enhance the political reputations of members of
Congress. (Technically, hearings focus on proposed legislation, whereas investigations deal with problems. They are lumped together here.) In 1997, the ­Senate
Finance Committee held hearings on the Internal Revenue Service (IRS) at
which taxpayers told “horror” stories about the IRS. Their sensational quality
attracted much media attention and helped build bipartisan political support
for the IRS Restructuring and Reform Act of 1998.24 This law created an independent board to supervise the IRS, called for the agency’s reorganization,
provided for disciplining agency employees who abused their authority, and
expanded protection for taxpayer rights. Generally, it was intended to make
the IRS a less adversarial and more taxpayer-friendly agency. Interestingly, it
was later found that many of the horror stories related at the Senate hearings
were unfounded or exaggerated.25
Another control device is the specificity of legislation. The more detail in
the legislation that Congress passes, the less discretion agencies usually will
have. Specific limitations on the use of funds may be written into statutes,
or deadlines may be specified for some actions, as has been done in some
environmental-protection laws; “hammers,” or stringent rules or requirements,
may be incorporated in a law, to go into effect if an agency does not act with
alacrity or effectiveness; or specific standards may be set, as in minimum-wage
legislation. The committee reports that accompany many bills often include
suggestions or statements explaining how legislation should be implemented
or specifying projects that money should go for. These reports do not have the
force of law but are ignored by administrators only at their own peril.
Senatorial approval, which is required for many top-level executive appointments, provides senators with a lever that can be used to influence policy. Commitments on policy matters may be extracted by senators from nominees during
hearings on their appointment. Or a nominee for a position may be rejected
The Legislature
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236
6 Policy Implementation
because some senators find objectionable his or her policy views or actions. This
happened to two persons nominated by President Bill Clinton to head the Civil
Rights Division of the Department of Justice. Conservative senators considered
them to be “too liberal,” that is, they were supporters of civil rights.
The legislative veto is an arrangement whereby either congressional approval has to be secured before an administrative action can be taken or a
specific action can be subsequently rejected by Congress or its committees; the
veto originated in 1932. President Herbert Hoover wanted authority to reorganize the national administrative system, but Congress was reluctant to grant
it. A deal was made. The president was authorized to reorganize the system,
but Congress gave itself the right to disapprove his actions if it deemed them
objectionable. The legislative veto gives administrative agencies flexibility in
the implementation of legislation while permitting Congress, if it so chooses,
to exercise control over what is done. It also enables Congress to become involved in the details of administration.26
As reported in Chapter 5, “Budgeting and Public Policy,” the Supreme
Court in 1983 declared the legislative veto unconstitutional. Nonetheless, since
then some 400 legislative veto provisions have been included in laws passed
by Congress. Others have been put in place by informal agreements between
Congress and the executive. During the George Bush administration, for example, the secretary of state agreed to give four congressional committees a veto
over the expenditure of funds appropriate to support the Contras (rebels) in
Nicaragua. Had this not been done, Congress might not have enacted legislation creating the aid program, which was strongly desired by the Bush administration.27 The legislative veto persists because the legislative and executive
branches view it as a practical way to handle some of their differing interests.
Finally, much of the time of many members of Congress and their staffs,
and some of the time of all members, is devoted to “casework.”28 Typically,
casework involves handling problems that constituents have with administrative agencies such as delayed Social Security or veterans’ benefits, difficulty
in getting action on a license application, or uncertainty about how to apply
for a grant. The constituents, of course, want their representatives to secure
favorable action for them. Members of Congress engage in casework because
it is thought helpful to their chances of reelection and because it contributes to
their oversight of agencies. Beyond that, the practice helps “humanize” administration by making it more responsive to individual needs and problems. As
for agency officials, responsiveness to congressional inquiries is seen both as
appropriate and as a means of building or maintaining political support.
ome legislation is enforced primarily through judicial
S
action. Laws dealing with crimes are the most obvious
example. Some economic regulatory statutes, such as the Sherman Act, are
enforced by lawsuits brought in the federal district courts, some of which
are eventually appealed to the Supreme Court. Because of this tactic and the
act’s general language, the meaning of antitrust policy depends greatly upon
The Courts
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Who Implements Policy?
237
judicial interpretation and application of the statute. In the nineteenth century, it was quite common for legislatures to enact laws requiring or prohibiting some action and then to leave it to the citizens to protect their rights under
the law through proceedings brought in the courts. Generally, administrative
regulation, in which primary responsibility is assigned to an agency for the
enforcement of a statute, is now much more common than judicial regulation
in the American political system. It is also more effective.
In some instances, the courts may be directly involved in the administration
of policy. Naturalization proceedings for aliens are really administrative in form,
but they are handled by the federal district courts. Bankruptcy proceedings are
another illustration. A complex system of trustees, receivers, appraisers, accountants, auctioneers, and others is supervised by federal bankruptcy courts. In all, it
is “a large scale example of routine administrative machinery.”29 A national bankruptcy agency could handle much of this activity. Many divorce and domesticrelations cases handled by state courts also appear essentially administrative,
involving matters of guidance and management rather than disputed law or facts.
There is no reason to assume that persons appointed or elected to judgeships are
distinctly qualified to act in these matters.
The courts’ most important influence on administration, however, flows
from their interpretation of statutes and administrative rules and regulations,
and their review of administrative decisions in cases brought before them.
Courts can facilitate, hinder, or largely nullify implementation of a policy
through their decisions. The story of how the Supreme Court destroyed the
effectiveness of early national railroad regulation under the Interstate Commerce Act of 1887 by unfavorable rulings on the Interstate Commerce Commission’s (ICC) authority to regulate rates is well-recorded history.
In recent years, the Supreme Court’s rulings have complicated and restricted the enforcement of equal-opportunity and affirmative-action programs.
For instance, the Court has ruled that to be constitutional, an affirmativeaction program has to be “narrowly tailored” to meet “a compelling government
interest.” A Colorado program providing for the award of a portion of highway
construction projects to minority contractors was struck down because it failed
to square with this standard.30
ecause of the discretion often vested in agencies by legislaB
tion, once an act is adopted, the group struggle shifts from
the legislative to the administrative arena. A group that can successfully influence agency action may have a substantial effect on the course and impact
of public policies. Sometimes relationships between a group and an agency
may become so close as to lead to the allegation that the group has “captured”
the agency. In the past it was frequently stated that the ICC was the captive
of the railroads, 31 and it is not uncommon now to hear comments to the
effect that the Federal Maritime Commission is unduly influenced by the shipping companies and that the Forest Service is too responsive to the interests of
commercial timber companies. Also, groups may complain to Congress or the
Pressure Groups
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238
6 Policy Implementation
executive if they believe a statute is not being implemented in accordance with
the intent of Congress (as they interpret it).
Groups also directly participate in administration, as when the representation of particular interests is specified for the boards of plural-headed agencies. A common illustration is state occupational licensing boards, whose
governing statutes frequently provide that some or all of the board members
must come from the licensed profession. Occupational licensing (and regulatory) programs are usually controlled by the dominant elements within the
licensed groups. Consequently, such programs may do more to protect the interests of the licensed group than those of the general public.
Advisory bodies, such as the Advisory Committee on Vocational Education, the
Advisory Committee on Hog Cholera Eradication, and the Advisory Committee on
Reactor Safeguards, are another means by which groups may become participants
in policy administration. Currently, around a thousand advisory groups serve national administrative agencies.32 Some simply provide needed advice to agencies
and their officials, as their name implies; others become more directly involved
in program administration. Membership in advisory bodies may give group representatives privileged or special access to governmental agencies. Thus, many large
defense contractors are represented on advisory committees for the Department of
Defense. When advisory groups have a role in agency decision-making, they can
add legitimacy to the policies that they have helped to develop.33
Some advisory committees may have direct control over program administration. Each of the nineteen institutes within the National Institutes of
Health (NIH) has an advisory council whose members must be leaders in science, medicine, and public affairs, including some who are specialists in the
field covered by a particular institute (e.g., cancer, aging, or allergy and infectious diseases). Research grants to medical schools, universities, and others,
which total more than $30 billion annually, can be made only after review and
approval by each institute’s advisory council. This is intended to ensure that
grants meet both scientific norms and public-policy criteria.34
t the local level, community and other organizations
A
occasionally have been used in the administration of national
policies. Examples include farmer committees under
the income-support and soil-conservation programs of the Department of
Agriculture, resource advisory councils for the Bureau of Land Management,
and representatives of the poor for Community Action agencies. Participatory
democracy of this sort may give those involved considerable influence over the
application of programs at the grass-roots level and also build program support. Local draft boards (“little groups of neighbors,” as they were sometimes
called) had a vital role during the Vietnam War years in determining, when
only a portion of eligible males were required to meet military needs, who
got drafted and who did not.35 Many of those drafted were sent to Vietnam.
The compulsory draft and draft boards were later eliminated, although eligible
males are still required to register with the Selective Service System.
Community
Organizations
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Administrative Organization
239
Very early on in his administration, President George W. Bush created a
White House Office of Faith-Based and Community Initiatives. Subsequently,
several of the executive departments established similar offices. All of this was in
accord with the President’s claims about “compassionate conservatism” during
the 2000 campaign. The notion was that federal funds for social services should
be funneled through local organizations, of which there were a vast number
and variety in American society, because they would be more effective than
governmental organizations.36 During the course of the Bush administration,
many billions of dollars were channeled through these organizations.
It was a controversial initiative because many observers thought that it
violated (or could) the constitutional separation of church and state. President
Barack Obama has continued a version of this program.
I n summary, a variety of entities may play a role in implementing a policy of any complexity. In addition to those
discussed here, the communications media (by reporting
and criticizing an agency’s operations), other agencies with competing or
overlapping jurisdictions, presidential staff agencies, and the judiciary, when
used to challenge agency actions, may also get involved. These amalgams of
participants are now often called “networks.”
As an example, there is the Office of Management and Budget (OMB),
whose interests reach beyond the funding of agencies. OMB is concerned with
whether agency actions are in accord with the “policies and programs” of the
president. Moreover, since 1981, the Office of Information and Regulatory
Affairs (OIRA), an OMB unit, has been authorized by executive orders to oversee
the issuance of rules and regulations by executive branch agencies. (More is
said on this topic in Chapter 7, “Policy Impact, Evaluation, and Change.”)
The number and variety of participants in the implementation process
will differ among policy arenas, depending upon policy salience, target populations, and the costs and impact of policies. The operations of the Railroad
Retirement Board, which is located in Chicago rather than Washington, DC,
draws little attention. In comparison, the Securities and Exchange Commission is a political magnet, attracting much attention and many interested
parties.
Concluding
Comments
Administrative Organization
One could say that one administrative agency looks pretty much like
another, or if you have seen one agency, you have seen them all. Such a notion,
however, is erroneous. Agencies in fact do vary greatly in structure, operating
style, political support, expertness, and policy orientation. Those who want to
influence the nature of public policy often are very interested in which agency
or type of agency will administer a policy. Conflict over questions of administrative organization can be every bit as sharp as conflict over substantive
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240
6 Policy Implementation
policies. Forming administrative organizations is a political as well as a technical task. As a longtime observer of administration has remarked:
Organizational arrangements are not neutral. We do not organize in a
vacuum. Organization is one way of expressing national commitments,
influencing program direction, and ordering priorities. Organizational
arrangements tend to give some interests and perspectives more effective
access to those with decision-making authority, whether they be in the
Congress or in the executive branch.37
The national executive branch comprises approximately seventy-five separate administrative entities and 2.8 million civilian employees (this includes
the U.S. Postal Service), most of whom are covered by merit systems. Basically, there are four kinds of agencies: executive departments, independent
regulatory commissions, government corporations, and independent agencies.
They are listed in the historical order in which they appeared in the national
administrative system.
The fifteen executive departments—State, Defense, Commerce, Health
and Human Services, to name a few—constitute the core of the executive
branch. At the helm of an executive department is a presidentially appointed
secretary who has cabinet rank and who is assisted in running it by various
under-, deputy, and assistant secretaries. These are all political appointees,
whose number has greatly expanded in recent decades.38
Most of the work of the departments in implementing programs and
policies is handled by major administrative units that can generically be
designated as “bureaus.” Thus, in the Department of Justice, one finds bureaus such as the Federal Bureau of Investigation, the Bureau of Prisons,
the Drug Enforcement Administration, the Civil Rights Division, the Antitrust
Division, and the U.S. Marshals Service. Because of their typically short
tenure in office and lack of technical knowledge, the political appointees at
the top levels of a department are often hard-pressed to exercise effective
control and direction of its bureaus.
Independent regulatory commissions are plural-headed agencies that engage in the regulation of private economic activities, such as stock markets,
banks, or labor-management relations (see Figure 6.2). Appointed by the president for fixed, staggered terms of office, only a majority of a commission’s
members can come from the same political party. Unlike department secretaries, who serve for “the time being” and can be fired by the president whenever
he or she chooses, regulatory commissioners can be removed only for such
specified causes as malfeasance, inefficiency, and neglect of duties. None has
been. Some have been pressured or urged to resign.
Thus, as a practical matter, the independent regulatory commissions,
which handle a significant share of the government’s regulatory programs, are
somewhat free from presidential control and direction. This is one reason why
Congress has created them. On the other hand, the president can try to bring
the commissions under his sway by appointing commissioners who share his
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Administrative Organization
241
Figure 6.2
Independent Regulatory Commissions
Federal Reserve Board (1913)
Federal Trade Commission (1914)
Securities and Exchange Commission (1934)
Federal Communications Commission (1934)
Federal Maritime Commission (1961)
Consumer Product Safety Commission (1972)
Nuclear Regulatory Commission (1974)
Commodity Futures Trading Commission (1975)
Federal Energy Regulatory Commission (1977)
© Cengage learning
National Labor Relations Board (1935)
policy preferences. The George W. Bush administration did this with the SEC.
The results were not good for the performance of the economy.
Government corporations, which first became a part of the executive branch
during the World War I era, are sometimes set up to handle businesslike or commercial activities for the government. Prominent examples are the U.S. Postal
Service, the Tennessee Valley Authority, and the Federal Deposit ­Insurance
Corporation. Wholly owned by the government, they look pretty much
like other government agencies, but they have greater operating flexibility in
financial and personnel matters. Typically, they impose fees or charges for the
goods or services that they provide and can reinvest earnings.
Independent agencies number close to forty and, like independent and
regulatory commissions and government corporations, are located outside of
the executive departments. Some are large, well-known, and important, such
as the National Aeronautics and Space Administration (NASA), the EPA, and
the Central Intelligence Agency; others are smaller and somewhat obscure, such
as the National Mediation and Conciliation Service, the Railroad ­Retirement
Board, and the National Credit Union Administration. A variety of factors has
contributed to their establishment. Some would not fit well into the executive
departments (such as NASA and the EPA), others have watchdog or review
duties (such as the Occupational Safety and Health Review Commission), still
others provide services to a variety of agencies (such as the Office of Personnel
Management), and some provide special notice for programs (such as the Peace
Corps and the Commission on Civil Rights). Although all are subject to presidential control, much of what many of them do is not of presidential interest.
The Dodd-Frank Act (2010) provided for stronger protection of consumers by regulating financial products and services (e.g., payday loans and home
mortgages) to ensure fairness and understanding of their terms. Implementation was assigned to a new Consumer Financial Protection Bureau, located in
but independent of the Federal Reserve System (although it is funded by the
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242
6 Policy Implementation
FRS). Its director is presidentially appointed with Senate approval for a fiveyear term. Harvard law professor Elizabeth Warren (now a U.S. Senator) was
instrumental in the bureau’s creation by her strong and persuasive advocacy.
Responsibility for implementing a new public policy usually is assigned to an
existing agency. Occasionally, however, a new agency is created for this purpose,
usually by legislative action. Thus, in 2001, Congress established the Transportation Security Administration in the Department of Transportation to handle
airport security. (It has been moved to the Department of Homeland Security.)
In other instances, new agencies were set up by the executive using administrative reorganization authority (now lapsed), which permitted the president to
propose reorganization plans that went into effect automatically unless
disapproved by either house of Congress. The EPA, established by a Nixon
administration 1970 reorganization plan, administers environmental-protection
programs formerly scattered among several agencies. A few other agencies—
such as the Department of Agriculture’s Farm Service Agency, which administers
income- and price-support programs, and the Centers for Medicare and Medicaid
Services in the Department of Health and Human Services—have been created
under broad statutory authority delegated by Congress to executive officials.
When a new policy or program is developed, the contending parties often
seek to have its implementation awarded to an agency that they think will act
favorably toward their interests. The case of occupational health and safety legislation is one in point. When it became evident in 1970 that legislation would
be enacted, attention focused on how it would be implemented. 39 Business
groups, along with the Nixon administration, did not want the Department
of Labor, which they viewed as pro-labor, to set health and safety standards.
Nor did they want standard-setting and enforcement to be lodged in the same
agency. Their preference was to have an independent board to set standards,
Labor to inspect workplaces, and either the courts or another agency to impose penalties and hear appeals. Organized labor, spearheaded by the United
Steel Workers, and liberal Democrats wanted all standard-setting and enforcement authority located in Labor.
The result was a compromise. The Department of Labor was awarded authority to set health and safety standards, enforce them, and impose penalties
for their violation. Within the department these tasks were assigned to OSHA.
An independent, quasi-judicial agency, the Occupational Safety and Health
Review Commission, was created to hear appeals of OSHA enforcement action. The National Institute for Occupational Safety and Health within the Department of Health and Human Services (formerly the Department of Health,
Education, and Welfare) was authorized to conduct research and to develop
and recommend health and safety standards. Moreover, enforcement authority
could be delegated to state governments with acceptable programs. This fragmented organizational structure has complicated and softened implementation of the occupational safety and health program. For example, enforcement
and penalty decisions made by OSHA have frequently been modified or overturned by the review commission.
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Administrative Politics
243
Viewed as a course of action, the content and impact of policy is affected by
how it is implemented. How it is implemented, in turn, will be shaped in part
by which agency implements it. Organization matters. Consequently, deciding
which agency should implement the program, or where it should be located, is
more than a technical task; it is also a political issue. All administrative agencies have some sort of political life, a topic to which we now turn.
Administrative Politics
A statute only gives an agency the legal authority to take action to implement policy on some topic. How effectively the agency carries out its legal
mandate and what it actually does or does not accomplish will be substantially
affected by the amount of cooperation and political support it gets and, conversely, the political opposition it runs into. To put it differently, an agency
dwells and acts in a political milieu that affects how it exercises power and
carries out its programs.
The environments of some agencies are more political, more volatile, and
more tumultuous than those of others. The Bureau of Engraving and Printing
and the U.S. Geological Survey lead much more serene political lives than do
the EPA and the Federal Communications Commission. But whatever the conditions, the environment in which an agency exists may contain many forces that
may, at one time or another, impinge on it and help give direction to its actions
in multitudinous ways.40 These forces may arise out of the following sources.
THE “BASIC RULES OF THE GAME” Included here are the relevant laws, rules, and
regulations, accepted modes of procedure, and concepts of fair play that help
form and guide official behavior and to which officials are expected to conform. Public opinion and group pressures may focus adversely on officials
who violate the rules of the game, as by appearing or proposing not to enforce
a statutory provision or by enticing persons to violate a law so that they can be
prosecuted. Officials who are overly zealous in enforcing laws, who cite companies for too many minor violations of health or safety standards, may be
seen as unreasonable zealots. Adverse executive or legislative action may stem
from such criticism.
THE CHIEF EXECUTIVE Most administrative agencies are located within the presidential chain of command or are otherwise subject to presidential control and
direction in such matters as top-level personnel appointments, budget recommendations, expenditure controls, and policy directives. The presidential
chain of command includes agencies and officials in the Executive Office of
the President and top-level political appointees (e.g., secretaries and assistant
secretaries) in the departments and agencies. Control and direction are much
more likely to emanate from those who work for the president than from the
president himself. Those who act for the president may or may not always
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244
6 Policy Implementation
act according to his or her preferences. There is sometimes suspicion, for
example, that White House aides “go into business for themselves.” Presidents
in recent decades seem not to have spent much time mulling over the operations
of administrative agencies. Perhaps they should have.
This supervisory system includes the
standing committees and subcommittees, their chairs, committee staffs, and
influential members of Congress. Congressional concern and influence is fragmented and sporadic rather than monolithic and continuous. It flows from
parts of Congress, rarely from Congress as a whole, and focuses mostly on specific issues or controversies. Professional staff members handle much of the
day-to-day congressional communication with agencies and may develop close
working relationships with agency officials.
THE CONGRESSIONAL SYSTEM OF OVERSIGHT
THE COURTS Agencies may be strongly affected by the judiciary’s use of its
powers of judicial review and statutory interpretation. Agencies may have
their statutory authority expanded or shorn by judicial interpretation, or
their decisions may be overruled because improper procedures were employed in making them. OSHA and the Federal Trade Commission (FTC)
have often had their actions challenged in the courts. Other agencies, such
as the Federal Reserve Board (FRB) and the Bureau of the Mint, have little
contact with the courts because their operations do not give rise to issues
of the sort normally handled by the judiciary. The greater the likelihood of
challenges in the courts of agency actions, the more influence lawyers have
in shaping agency actions.
Agencies with competing or overlapping jurisdictions may affect one another’s operations. In drug-law enforcement, the Drug
Enforcement Administration, the U.S. Coast Guard, the Customs Service, and
other agencies have engaged in turf battles and competed for recognition and
credit in making drug busts, sometimes appearing to lose sight of their main
task.41 Water agencies such as the Army Corps of Engineers and the Bureau of
Reclamation (BOR) have also been rivals for the right to control and construct
water projects. Occasionally, an agency may aspire to take over a program of
another agency, and may succeed. Thus, the Department of Labor acquired the
Job Corps program, which was initially run by the Office of Economic Opportunity. Agency imperialism, however, is not as rampant as some commentators
imply.42 Agencies sometimes do not want to take on new programs, especially if
they are likely to be difficult to administer.
Moreover, agencies need to be cautious about intruding on the “organizational heartland” of other agencies—the programs or responsibilities they view
as essential to their missions and well-being.43 The U.S. Fish and Wildlife Service risks doing this when enforcing the Endangered Species Act to prevent
habitat destruction threatening the survival of species by actions of the Corps
of Engineers or the Forest Service.
OTHER ADMINISTRATIVE AGENCIES
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Administrative Politics
245
Some agencies may form cooperative relationships, as have the FTC and
the Antitrust Division of the Department of Justice in antitrust enforcement.
An agency may even refuse to take a program from another agency. Stuart
Udall, secretary of the interior during the Johnson administration, relates that
he offered to give the Bureau of Indian Affairs Indian-education program to
the Department of Health, Education, and Welfare so that its secretary, John
Gardner, would have his own school system to run. Gardner refused the offer.44
OTHER GOVERNMENTS State, municipal, and county governments, school
districts, and associations of state and local officials (such as the National
League of Cities) may attempt to influence a national agency’s decisions.
Associations of state highway officials are much interested in the activities
of the Federal Highway Administration. The EPA encounters quite a lot of
pressure, criticism, and resistance from state and local governments and their
environmental agencies in developing and implementing standards for pollution control. The effectiveness of many national programs depends upon how
they are implemented by state and local agencies, which provide such governments with some leverage over their conduct. The No Child Left Behind Act is
a case in point.
The group context differs considerably from one agency
to another. Some agencies—the Forest Service and the Food and Drug
Administration (FDA) are examples—attract the attention of many groups,
some supportive and others hostile. Buffeted by opposition, such agencies may
move more cautiously than others that deal primarily with one group, such
as the Department of Veterans Affairs. No matter what the FDA’s decision is
on an important issue, some groups probably will be sufficiently offended as
to launch a judicial or legislative challenge. Other agencies—for instance, the
Inter-American Foundation and the Railroad Retirement Board—experience
few group pressures.
Agencies often actively seek group support (or consent) to increase the size,
ease, or effectiveness of their operations. Advisory groups may be created, presentations made at group meetings by agency officials, and program modifications initiated in the quest for support.
INTEREST GROUPS
The role of the party organizations has declined in recent
decades with the extension of merit systems of hiring to most agency personnel. Appointments to top-level agency positions, however, still may be influenced by considerations of party welfare and policy orientation. Because
only a majority of the members of an independent regulatory commission can
belong to the same political party, party affiliation is an explicit consideration
in these appointments. Some agency actions may be influenced by an urge to
enhance party success at the polls, as when the Reagan administration expanded
the availability of agricultural loans in the months prior to the 1986 congressional
elections.
POLITICAL PARTIES
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246
6 Policy Implementation
Beyond their use as forums for pressure groups, political parties, and others trying to influence an agency’s action, the mass-communications media have an independent role. The media may play an important
part in shaping public opinion toward an agency by revealing and publicizing
its actions, favorably or unfavorably. For decades, the Federal Bureau of Investigation was quite well treated by the press, although its problems in recent
years have caused a decline in its support. In contrast, the political lives of the
IRS and the Bureau of Alcohol, Tobacco, Firearms, and Explosives have been
made more difficult by the battering they have received in the media. Also, it
should be noted that agencies scrutinize the media in order to acquire information about the public and its preferences.
Specialized media, too, mostly journals, newspapers, newsletters, and
websites, inform their clients and other interested persons about the
operations of agencies or programs. These are increasingly more important
for many agencies than are the more general media. This would be true of the
Agricultural Marketing Service and the U.S. Fish and Wildlife Service. Field
and Stream and Outdoor Life provide their readers with a particular slant on
the U.S. Fish and Wildlife Service. So do local outdoors editors.
Each of the forces sketched here is multiple rather than monolithic. Conflicting viewpoints may be held by members in the same category as well as
by those in different ones. Thus, a number of political forces may impinge
on an agency, pushing and pulling against each other with varying intensity,
and growing and ebbing. Agencies, of course, are not simply sitting ducks but
rather will try to shape, influence, and mollify the forces in their environment.
Pressure relationships between an agency and those who seek to influence it
are therefore usually reciprocal.
The field of forces surrounding an agency (as shown in Figure 6.3) will be
drawn from the preceding categories and will form the constituency of the
agency, that is, “any group, body, or interest to which [an administrator] looks
for aid or guidance, or which seeks to establish itself as so important [in his or
her judgment] that he [or she] ‘had better’ take account of its preferences even
if he [or she] is averse to those preferences.”45 The concept of constituency is
broader than that of clientele, which comprises the reasonably distinct set of
individuals and groups directly served or regulated by an agency. Thus, savings
and loan associations were the clientele of the Office of Thrift Supervision; its
constituency comprised a broader set of forces or stakeholders concerned with
its operations. The OTC was abolished in 2010 for being too “chummy” with
savings and loan associations.
The constituency of an agency is dynamic rather than static. Some constituents will be concerned with the agency only as certain issues arise or are
settled; others will be more or less continually involved and will compose the
stable core of the agency’s constituency. The stable core of the Food Safety
and Inspection Service (FSIS) in the Department of Agriculture includes commercial meat- and poultry-processing companies, the congressional Agriculture Committees, and the relevant appropriations subcommittees. The chief
COMMUNICATIONS MEDIA
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247
Administrative Politics
Figure 6.3
The Political Environment of an Agency
Judiciary
ns
tio dia
a
ic e
un M
m
om
C
Executive
Agency
Congress
Po
lit
Pressure
Groups
s
nt
e
er m
th vern
O o
G
ic
al
Pa
rt
ie
s
Note: The two-headed arrows indicate that influence relationships may run in both directions.
© Cengage learning
Ag O
en the
ci r
es
executive, the FDA, the communications media, and consumer groups are
intermittently involved with the FSIS. All other things being equal, the constituents who continually interact with an agency are likely to have the most
success in influencing the agency’s action.
The character of an agency’s constituency will affect its power relations
and capacity to make policy decisions and carry those decisions into effect.
The relationship of an agency to one part of its constituency will partially
depend on the kinds of relationships it has with other parts. For example,
an agency with strong presidential support can afford to be less responsive
to pressure groups than an agency without such support. On the other hand,
strong congressional and group support may lessen presidential influence, as
with the Army Corps of Engineers.46 An agency encountering criticism from
state and local government officials may find that its congressional support
also wanes as a consequence. As a general rule, an agency’s policymaking and
implementation activities will reflect the interests supported by the dominant
elements within its constituency, whether they are hostile or supportive.
An agency’s clientele is an important component of its constituency. Some
agencies benefit from large, active clienteles. This is true for the Social Security
Administration, the Small Business Administration, and some units within the
Department of Agriculture. But size alone is not enough. Consumers are a vast
group, but because they tend to be poorly organized and lack self-consciousness
as a group, they provide little support to consumer agencies such as the FDA and
the Consumer Product Safety Commission. If the FDA has been unduly responsive to food and drug manufacturers, as some allege, it is partly because it lacks
consumer support and partly because the agency both needs the manufacturers’
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248
6 Policy Implementation
cooperation in the administration of its programs and encounters organized
pressure from them.
Some agencies have underprivileged or disadvantaged clientele; the Legal
Services Corporation, the Federal Bureau of Prisons, and most welfare agencies fit in here. These clienteles will not be able to provide much help politically.
Thus the Office of Economic Opportunity was hampered in administering
poverty programs because its clientele, the poor and especially the black poor,
were not a strong source of political support. An agency with a two-party clientele, such as the NLRB, whose clientele includes labor union and management
groups, may be able to maintain some independence by playing one off against
the other.
Agencies implementing distributive programs that provide services usually elicit more support from their clientele than do regulatory agencies. Most
people obviously prefer receiving benefits to being restricted or controlled. An
agency with a foreign clientele (the Agency for International Development is
an example) can draw little usable political support from its clientele. The lack
of a domestic clientele has clearly been disadvantageous for the foreign-aid
program. It has been a prime target for budget reductions.
Examining an agency’s constituency and clientele can provide insight into,
and explanation of, why an agency acts as it does. It should not, however, be
assumed that an agency is an inert force at the mercy of its constituency or the
dominant elements therein. Because of their expertise, organizational spirit,
or administrative statecraft, agencies can exert some independent control over
events and help determine the scope of their power.47
Any bureaucratic agency has some expertise in the performance of its
assigned tasks, whether these entail garbage collection, killing predators,
regulating banks, or the conduct of diplomatic relations. All bureaucratic skills,
however, do not receive equal deference from society. Agencies whose expertise
derives from the natural and physical (“hard”) sciences will receive more deference than those drawing from the social sciences, which are less highly regarded
in society. Compare, for example, the situations of NASA and the National
Cancer Institute with the Census Bureau and the Economic Research Service
(U.S. Department of Agriculture). Considerable deference is shown to the
military as “specialists in violence,” and Congress often defers to the judgment of the Department of Defense and the Joint Chiefs of Staff in military and
defense policy. Professional diplomats (“cookie pushers in striped pants”), on
the other hand, no longer receive the deference in foreign policy that they once
did. Power based on expertise may fluctuate as conditions and attitudes change.
Some agencies are more capable than others of generating interest in,
and enthusiasm and commitment for, their programs from both their own
members and the public. This condition is designated organizational ­esprit.
It depends upon an agency’s capacity to develop “an appropriate ideology
or sense of mission, both as a method of binding outsiders to the agency
and as a technique for intensifying its employees’ loyalty to its purposes.” 48
The Marine Corps, Peace Corps, Forest Service, and EPA are served with
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Administrative Policymaking
249
considerable fervor and commitment by their members. Other agencies have
displayed much zeal in their early years, only to ease into bureaucratic routines
and stodginess as the years slip by. This decline has weakened some of the national
independent regulatory commissions.
Leadership, or the ability Professor Francis E. Rourke calls “administrative statecraft,”49 can also enhance an agency’s power and effectiveness.
A government agency’s leadership, like that in all organizations, is situational,
being shaped significantly by factors in the environment other than the leaders
themselves. Nevertheless, leadership can still significantly influence the agency’s operation and success. Some agency leaders are more effective than others
in dealing with outside interest groups, cultivating congressional committees,
opening the organization to new ideas, and communicating a sense of purpose
to its personnel. The mid-1980s revitalization of the EPA following its decline
in the early years of the Reagan administration was aided by the able leadership of William Ruckelshaus and Lee Thomas as successive administrators.
Under the leadership of Paul Volcker, Alan Greenspan, and Ben Bernanke,
the FRB carried the major burden in stabilizing the economy for more than
two decades. In the early 2000s, however, Greenspan kept interest rates low
and believed financial institutions would regulate themselves (which they did
not). This contributed to the nation’s financial crisis. Greenspan later acknowledged that he had been wrong about self-regulation.
Administrative Policymaking
As we saw in Chapter 3, “Policy Formation: Problems, Agendas, and
Formulation,” administrative agencies frequently participate in policymaking at
the legislative stage. Here our analytical lens shifts to the administrative arena,
where administrative officials have the capacity to make decisions that shape
policy and are subject to influences radiating from their clientele and constituencies. Something of a role reversal occurs for legislators, who now act not as
decision-makers but as potential influencers of decisions. Agency policymakers—political appointees and upper-level civil servants—occupy positions that
convey discretion to them in the direction of the agency and its programs.
Tension often exists between the civil servants—possessed of long service
and experience in agency affairs—and political appointees who represent the
victorious political party and sometimes manifest a desire to make substantial
alterations in agency activities, but who lack knowledge about the agency and
its policies. Both differ greatly from the lower-level agency personnel a citizen is most likely to encounter—those selling stamps, guiding tours at national
parks, handling customs matters at international airports, or processing Social
Security documents. For these lower-level personnel, the line between politics
and administration remains fairly distinct.
In this section, two aspects of agency policymaking are examined: the characteristics of agency decision-making and the processes by which an agency
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250
6 Policy Implementation
can develop policy. It is well to keep in mind here the distinction between a
decision and a policy.
DECISION-MAKING Hierarchy is of central importance in agency decisionmaking. Although in legislatures each member has an equal vote, if not equal
influence, within agencies those at upper levels have more authority over final
decisions than the occupants of lower levels. To be sure, factors such as decentralization of authority, responsiveness of subunits to outside forces (such as
pressure groups), and participation by professionals in administrative activity
may work against hierarchical authority, but hierarchy should nonetheless not
be underestimated. Complexity, size, and the desire for economical operation
and more control over the bureaucratic apparatus all contribute to the development of hierarchical authority. Also, compliance with hierarchical authority
is one of the rules of the game that organization members generally accept.
As for its consequences for decision-making, hierarchy provides a means
by which discrete decisions can be coordinated and conflicts among officials at
lower levels in the agency can be resolved. Hierarchy also means that those
at upper levels have a larger voice in agency decisions because of their higher
status and authority, even though lower-level officials may have more substantive qualifications and information. A separation of power and knowledge may
thus threaten the rationality of administrative decisions.50 Hierarchy can also
adversely affect the free flow of ideas and information in an organization; subordinates may hesitate to advance proposals they think might run counter to
“official” policy or antagonize their superiors. Few want to carry the message
that causes the messenger to be shot.
Low visibility is another important feature of administrative decisionmaking. Compared with that of legislatures, administrative decision-making
is a relatively invisible part of government. Agencies may hold public hearings, issue press releases, and the like, but they exercise much control over
the information that becomes available about their internal deliberations and
decisions. Much of what they do is little noticed by the public or reported by
the media. This invisibility can contribute to the effectiveness of decisions by
providing a congenial environment for presenting and discussing policy proposals that might otherwise be avoided as publicly unpopular.
Deliberations by Kennedy administration officials during the Cuban missile
crisis were more effective because they were private, or closed.51 Additionally, low
visibility may facilitate the bargaining and compromise often necessary to reach
decisions and take action because officials find it easier to move away from privately stated than from publicly stated positions. On the other hand, privacy in
administrative deliberation could mean that some pertinent facts are not considered and that significant interests are not consulted. Though secrecy contributed
to the effectiveness of the Cuban missile crisis decisions, it had the opposite effect
with regard to the Bay of Pigs invasion debacle in the previous year.
Low visibility is, on the whole, more a part of administrative deliberations in foreign and defense policy than in domestic matters.52 In the latter
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Administrative Policymaking
251
area, confidentiality has been reduced by legislation designed to open the administrative process to greater public participation and scrutiny. The Freedom of Information Act provides a procedure for extracting documents and records from
agencies, and the Government in the Sunshine Act requires most plural-headed
agencies to open their decision-making sessions to the public.
Administrative agencies constitute “a governmental habitat in which expertise
finds a wealth of opportunity to exert itself and to influence policy.”53 Agencies
clearly are affected by political considerations, including the wish to protect their
own power, in making decisions. Thus, the Department of Commerce is unlikely
to make policy decisions that sharply conflict with important business interests.
Nor is the Tennessee Valley Authority inclined to ignore major economic interests
in its region. Agencies nonetheless do provide a context within which experts and
professionals, official and private, can work on policy problems.
Scientific and technical considerations and professional advice are important
factors in most administrative decision-making. Whether it is the Federal Aviation
Agency considering the adoption of a rule on aircraft safety, the FDA acting on
the safety of implanted medical devices, or the secretary of labor confronting a
major choice on job-training programs, each needs good information on the
technical feasibility of proposed alternatives. Decisions that are made without
adequate consideration of their technical aspects or that conflict with strong professional advice may turn out to be faulty on both technical and political grounds.
Professional and scientific advice is not always sound, however. In 1976,
following the identification of a few cases of influenza at Fort Dix, New Jersey,
public-health officials decided that the nation was confronted with the possibility of a swine-flu epidemic similar to one that had killed 500,000 people in the
United States in 1918. Acting on their advice, the Ford administration decided
to initiate a costly nationwide immunization campaign. The flu epidemic never
came, however, and the entire venture became a policy fiasco.54
Finally, administrative decision-making is very frequently characterized
by bargaining. Experts and facts are important in administrative decisionmaking, but so also are accommodation and compromise. Some agencies may
be less apt to engage in bargaining than others. Decisions from the National
Institute of Standards and Technology and the Patent and Trademark Office
are primarily expert findings based on factual records. Economic regulatory
agencies, such as the Securities and Exchange Commission and the EPA, often
find it necessary to bargain with those whom they regulate. In setting emission
standards, the EPA has had to bargain with both polluters and state and local
officials to reach tolerable decisions and help secure compliance. Another notable example of bargaining involves the consent decrees used by the Antitrust
Division of the Department of Justice to close most civil antitrust cases. Negotiated
beyond public view by representatives of the division and the alleged offender,
the consent decree states that the division will drop its formal proceedings
in turn for the alleged offender’s agreement to stop practices such as pricefixing or acquisition of a competitor. Negotiations with other countries for tariff
reductions also illustrate bargaining, in this instance with foreign officials.55
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252
6 Policy Implementation
dministrative agencies engage in a wide range of activiA
ties and make multitudes of decisions as they administer
the laws within their jurisdiction. (Some of these activities
or techniques are discussed in the next section.) Out of this welter of activity, four patterns can be identified and designated as policymaking because of
the ways in which they help define the content and thrust of public policies.
These patterns are rule-making, adjudication, law-enforcement practices, and
program operations.
Patterns of
Policymaking
RULE-MAKING The Administrative Procedure Act defines a rule as “an agency
statement of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” Substantive rules fill
in the details of general statutory provisions and have the force and effect of
law. Interpretive rules indicate how an agency views or interprets the laws that
it enforces and the meaning it gives to statutory terms such as discriminate,
small business, or an appropriate education. Procedural rules describe an agency’s
organization and how it will conduct its various activities. In practice, it is not
always easy to distinguish these types of rules, or to separate them from informal statements of agency policy or practice.56
Congress has delegated rule-making authority to a large number of administrative agencies. Thus, the Securities and Exchange Commission is authorized to make rules governing the stock exchanges “as it deems necessary in
the public interest or for the protection of investors.” OSHA is empowered to
make rules setting health and safety standards for workplaces. In the case of
toxic substances, OSHA is directed to set the standard “which most adequately
assures, to the extent feasible, on the basis of the best available evidence, that
no worker suffers material impairment of health,” even when exposed to a
toxic substance over the course of a working career. The conditions embedded in this delegation reflect compromises made during the legislative process.
They leave the meaning of the law vague and the agency uncertain as to what
is required to meet the standard.
Rule-making, which is one of the primary instruments of government in
the United States, is the part of the administrative process that most resembles
the legislative process.57 Most frequently it takes the form of informal, or notice
and comment, rule-making. The procedural requirements governing informal
rule-making are set forth by the Administrative Procedure Act (Section 553):
1. A notice of proposed rule-making (NPRM) must be published in the
Federal Register that specifies the legal authority for the rule, the terms
or substance of the proposed rule, and the time, place, and nature of the
public rule-making proceeding.
2. An opportunity must be provided for interested persons to participate
in the rule-making, through either oral or written comments. For
controversial rules, agencies will often choose to hold hearings. Although
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Administrative Policymaking
253
a hearing rarely changes anyone’s mind on a proposed rule, it serves
to educate the public and permits a more extensive record of public
participation to be compiled. This can help the agency if the rule is
challenged in the courts.58
3. A concise statement of the rule’s “basis and purpose” must be included
with the final rule. In the preamble to a rule, the agency indicates the
information, data, and analyses that it relied on in developing the rule.
Also, the number and nature of public comments, the issues that they
raised, and actions taken (or not taken) by the agency in response may
be detailed. The preambles to rules often exceed the actual rules in
length.59
4. The final rule must be published at least thirty days before it becomes
effective.
These requirements are intended to provide for fairness in rule-making,
which includes furnishing those interested in or affected by a rule with
an opportunity to participate in its development and perhaps influence
its content. (In actuality, most final rules differ little from their proposed
form.)
In some instances, agencies are required by statutes to follow more detailed and stringent procedures in rule-making actions (see Figure 6.4). Thus,
if a statute specifies that rules must be based on a formal record, then an
agency, in making a rule, must hold a trial-type hearing, follow rigorous procedures, allow legal representation and cross examination of witnesses, and base
its rule on “substantial evidence in the record.” The comparable standard for
rules emanating from informal proceedings is that they must not constitute an
“arbitrary or capricious abuse of discretion.” This is yet another of the mushy
standards that one encounters in the policy world.
In addition to the Administrative Procedure Act, some other statutes impose procedural requirements on rule-making agencies. If a rule has a significant impact on the environment, the National Environmental Policy Act
requires the agency to prepare an environmental impact statement. Should
small businesses be disproportionately affected, the Regulatory Flexibility Act
requires the agency to take steps to reduce a rule’s impact on them. If a rule
necessitates the collection of information from the public, then the Paperwork
Reduction Act applies. OMB approval is needed to ensure that the information
collection does not impose an unnecessary burden on the public. These various requirements complicate and slow the rule-making process. And, as lawschool dean Cornelius Kerwin notes:
Our legislators enact programs of regulation or social welfare but then encumber them with procedural requirements that will almost certainly stall
their implementation. This simply confirms that political decision making is
multidimensional. The combination of an aggressive and ambitious substantive mission combined with a cautious and painstaking process of implementation can satisfy different sets of constituents.60
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254
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5.
Oral and/or written
comments are sought on
the proposed rule. This
may be repeated.
1.
Something triggers action
—a law passed by
Congress, research by the
agency, an accident,
interest group activity, etc.
The draft of the final rule
is sent to OIRA, which
asks for changes (final
decision authority resides
in the agency).
7.
Proposed “major” rules are
sent to the Office of
Information and Regulatory
Affairs, which does a cost–
benefit analysis. OIRA can
call for changes.
3.
9.
Congress may review
the rule and reject it,
which is unlikely.
More likely, legality of
a rule will be challenged
in the courts by interest
groups or others.
The agency drafts a final
rule, taking comments into
account. Internal review
and bargaining occurs.
6.
The agency develops a
proposed rule. This is an
institutional action
involving many people
and probably much time.
2.
The Federal Rule-Making Process
Figure 6.4
The agency issues the
rule. An often lengthy
preamble accompanies
the rule, explaining and
justifying it. The rule takes
effect in 60 days.
8.
A notice of proposed
Rule-making (NPRM) is
published in the Federal
Register. Legal authority
and proposed substance of
rule are specified.
Rule-making now becomes
public.
4.
© Cengage learning
Administrative Policymaking
255
In addition to legislative requirements, beginning in the early 1980s, presidential executive orders have required agencies (other than independent regulatory
commissions) to submit proposed rules rated as significant or major to the Office
of Information and Regulatory Affairs (OIRA) for cost–benefit analysis. OIRA gets
a few “whacks” at such rules and can delay their issuance if it decides they do not
pass cost–benefit muster. (See the discussion of CBA in Chapter 7, “Policy Impact,
Evaluation, and Change.”)
A variety of factors may initiate the agency rule-making process. A few are
noted here. The Dodd-Frank Act directed the Bureau of Consumer Financial
Protection, the Commodity Future Trading Commission, and other agencies
to make hundreds of rules spelling out the law’s provisions. Pressure groups
may lobby for agency action and, moreover, use litigation to back up their
demands. Legal action by the Center for Biological Diversity has caused the
U.S. Fish and Wildlife Service to list scores of species as endangered. Agency
research and enforcement experience may identify problems to be dealt with
by rules. During the George W. Bush administration, the OIRA occasionally
issued “prompt letters” to encourage rule-making on some topic or to give
it higher priority. Some sort of crisis or accident also may generate rulemaking. Presidential directives and recommendations from Congressional
committees or federal advisory committees are other possibilities.
Notwithstanding the procedural and other obstacles that they encounter,
national administrative agencies issue thousands of rules annually. These
range from those that are of small moment and short duration—such as some
Agricultural Marketing Service rules on the quality of fruits and vegetables—
to those that impose major costs and affect large numbers of people—such
as EPA rules on air quality and hazardous-waste disposal. Collectively, these
rules, which daily are reported in the Federal Register, are much larger in
volume than the legislation enacted by Congress. Agency rules are codified
in the Code of Federal Regulations.
ADJUDICATION Agencies can make policy when they apply existing laws or rules
to particular situations by case-to-case decision-making. In so doing, they act
in much the same manner as courts, just as they act in legislative fashion when
engaged in rule-making. In the past, the FTC made policy by applying the
legislative prohibition of unfair methods of competition to specific cases.
These cases gradually marked out public policy and by induction indicated the
kinds of practices banned by the general prohibition.
An agency also may make policy when it gives an interpretation to a
statutory provision in applying it in a case. The NLRB, which administers
labor-management relations legislation, makes and announces statutory
interpretations in deciding unfair-practice cases, which then inform its action
in future cases. NLRB opinions on such matters as what constitutes “good
faith” in collective bargaining become policy statements of importance to
union and company officials.
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256
6 Policy Implementation
Agencies frequently choose to make policy by adjudication, even though they
have rule-making authority. This is true for the NLRB, for instance. (They may
be authorized, but not required, to engage in rule-making.) An agency may find
it no easier than a legislature to reach a decision on the content of general policy, especially in a novel or highly controversial situation. Consequently, it can
choose to proceed in a more piecemeal or incremental manner. Those affected
by agency action, however, may be left in the dark as to what policy is supposed
to be when it is made case by case. And indeed, agencies have been criticized for
relying too much on adjudication and too little on rule-making as they develop
policy.61
Much of the adjudication that administrative agencies engage in is informal or routine, such as the hundreds of thousands of decisions made annually
by the Department of Veterans Affairs and the Social Security Administration
on applications for benefits. Still, within the framework of statutory language,
seemingly routine decisions may shift the direction or skew the effect of policy.
Agencies may also mold policy through their various lawenforcement actions. A statute may be enforced vigorously or even rigidly, in
a lax manner, or not at all; it may be applied in some situations and not in others,
or to some persons or companies and not to others. Everyone is familiar with
the discretion exercised by the police officer on the beat or, what is more likely,
in the patrol car. A ticket may be given to a speeder, or only a warning may
be issued. If no drivers are ticketed unless they exceed posted speed limits by
a specific rate, this choice amounts to an amendment of public policy. Even
when statutory provisions are quite precise, thus seeming to eliminate discretion
in their interpretation, enforcement officers still have some discretion with respect
to the manner in which they will be enforced.
Policy may be shaped by administrative inaction or apathy as well as by
an agency’s positive action and zeal. Inaction often adversely affects only the
inarticulate or inattentive general public and consequently may pass unnoticed.
In 1936, Congress enacted the Robinson-Patman Act to protect small retailers against price discrimination by large competitors such as chain stores and
discount houses. Economists have long criticized the law as a barrier to price
competition. During the past decade or two, both the FTC and the Antitrust
Division of the Department of Justice, under whose jurisdiction the RobinsonPatman Act falls, have ceased to enforce it. Some question exists as to whether
agencies should be able to ignore a law in this manner.
A second example involves the Reclamation Act of 1902, which authorized
a massive irrigation program to encourage agricultural development in the
western states. The land that a farmer could irrigate with low-cost water from
federally constructed reservoirs was limited to 160 acres, or 320 acres for a
farmer and spouse. Further, they were required to live on or near their land.
For many decades these restrictions, which were clearly spelled out in the
law, were not enforced by the BOR. As a consequence, much of the belowmarket-cost water from federal reclamation projects was provided to large
LAW ENFORCEMENT
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Administrative Policymaking
257
farms, often owned by corporations, encompassing thousands of acres. Many
were (and are) located in California’s Central Valley. These large landholders
were strong supporters of BOR’s reinterpretation of the law.62
Pressure by environmentalists and organizations representing small farmers finally induced Congress in 1982 to pass the Reclamation Reform Act. The
irrigation limit was increased to 960 acres and the residency requirement was
repealed. Large landholders then created “farming trusts” to manage supposedly separate units not subject to the 960 acre cap. Collectively they far exceed
it. Still intransigent, the BOR has continued to acquiesce in this subterfuge.63
In this instance, as well as that of the Robinson-Patman Act, one encounters
agency nullification of legislative policy. What becomes of the rule of law?
In addition to the attitudes and motives of its officials, external pressures, and
financial resources, an agency’s capacity to carry out policies will be significantly
affected by the enforcement authority and techniques available to it. Opponents
unable to block legislative enactment of a law may seek to blunt its impact by
handicapping its enforcement. Take the equal employment opportunity provisions
in Title 7 of the Civil Rights Act of 1964, which prohibit firms or unions representing fifteen or more employees from discriminating against individuals because of
their race, color, religion, national origin, or sex. Along with the other titles in the
act, these provisions were adopted over strong conservative opposition.
The EEOC was authorized to enforce the law through investigations, conferences, and conciliation, which means essentially voluntary action. If these
methods failed, the EEOC could recommend civil action in the federal courts,
which required cooperation by the Department of Justice to prosecute cases.
Moreover, the law provided that the EEOC could not act on complaints from
states that had an antidiscrimination law and an agency to enforce it, unless
the state agency was unable to complete action within sixty days. Complaints
had to be filed “in writing under oath,” which is an unusual requirement for
a law-violation complaint. This stipulation undoubtedly had a chilling effect
on many southern blacks and others. Whatever the intent behind these provisions, they clearly limited the law’s effectiveness by making the successful
completion of cases a slow, tedious process.
After 1964, the EEOC and many supporters of stronger enforcement advocated giving the agency authority to issue cease-and-desist orders64 in discrimination cases and then to seek, on its own initiative, their enforcement in
the federal courts. Opposition to this proposed change was particularly strong
from conservatives and southerners. The EEOC was eventually empowered to
bring court action on its own initiative but not to issue cease-and-desist orders
when the conciliation of complaints was not successful. Though perhaps not
as much as hoped, this new authority did help strengthen the enforcement and
effectiveness of the anti-job-discrimination policy.
PROGRAM OPERATIONS Many agencies administer loan, grant, benefit, insurance, and service policies and programs, or engage in the management of
public properties such as forests, parks, and hydroelectric plants. Although
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258
6 Policy Implementation
these activities are not usually thought of as law enforcement because they
are not designed directly to regulate or shape people’s behavior, they are often
of much importance to many people. How such programs are implemented
helps determine policy both directly and indirectly. Some examples will
provide clarification.
CASE
STUDY
The Nuclear Waste Disposal Act
A problem resulting from the development of the commercial
nuclear power industry was how to handle the disposal of highlevel radioactive nuclear waste, which remains highly dangerous for many
thousands of years. Public officials and Congress fretted about this matter
for several years. Then, in 1982, Congress enacted the Nuclear Waste Policy
Act in an effort to provide a “permanent” solution.
The Nuclear Waste Policy Act assigned the Department of Energy the task
of picking two storage sites—one east and one west of the Mississippi River.
Following the procedures specified in the act, in 1985 DOE designated three
western sites—Deaf Smith County, Texas; Yucca Mountain, Nevada; and
Hanford Nuclear Reservation, Washington. All fought against being selected
as the final disposal site. Then in 1987, rather than follow the specified procedures, Congress summarily passed legislation making Yucca Mountain the
waste disposal site. Nevadans were outraged by this action.
Many years and much money ($10 billion as of 2008) have been spent
doing research on the safety and viability of the Yucca Mountain site.
Nevadans, Democrats and Republicans, officials and citizens remained
steadfast in their opposition, using political and public relations tactics, initiating lawsuits, and disputing scientific findings. They have drawn support
from the ranks of environmental and consumer groups and nuclear power
opponents. The nuclear power industry and various business groups, such
as the U.S. Chamber of Commerce, have favored completion of the project.
Finally, in February 2002 President George W. Bush, who favored expansion of the nuclear power industry, gave his approval to the Yucca Mountain
site. Under the 1987 statute which designated it, Nevada was entitled to exercise a veto, which it quickly did. Congress, however, adopted a resolution
which overrode the veto. Then in July 2002, President Bush signed legislation
making Yucca Mountain the nation’s high-level radio-active waste depository. This cleared the way for the Department of Energy to seek a license for
the project from the Nuclear Regulatory Commission.65 This was expected to
take several years. If all went well, officials expected to begin moving nuclear
waste in the repository by 2010. This proved to be wrong.
President Barack Obama, who had been critical of nuclear power during
the 2008 presidential campaign, moved the following March to eliminate most
of the funding for the Yucca Mountain site.66 After decades of struggle and the
expenditure of many billions of dollars, the nation remains without a permanent
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Administrative Policymaking
259
solution to its nuclear waste disposal problem. There is no Plan B. High-level
waste remains “temporarily” stored at 121 sites scattered around 39 states, who
had hoped to rid themselves of it. This is not an acceptable solution.
The nuclear disaster in April 2011 at Japan’s Fukushima Daiichi nuclear
power plant, caused by an earthquake and tsunami, stimulated efforts to
develop a new solution. Waste disposal experts urged that nuclear wastes be
moved to a “halfway house” for at least a century until a new burial site could
be built. Bipartisan interest in something along these lines developed in
Congress. Whether it will result in action is anyone’s guess. The intractability
of the nuclear waste disposal problem remains high. ■
CASE
STUDY
The Total Maximum Daily Load Program
The Clean Water Act (1972) mandated technological standards
to reduce water pollution coming from stationary sources—
factories and municipal sewage treatment plants. Because these standards
did not apply to all sources of water pollution, it was not likely that the goals
of the act would be achieved by the technological standards alone.
As a backup, the Clean Water Act in Section 303 created the Total Maximum
Daily Load (TMDL) program, a complex matter.67
Under the TMDL program, states were directed to establish ambient water
quality standards for water bodies (rivers, streams, lakes). These standards
were to comprise the designated use or uses of a water body (e.g., public
water supply, industrial water supply, recreation) and to estimate the total
maximum daily amount of various pollutants that a water body could receive
and still meet appropriate water quality standards with a margin of safety.
If a state failed to take this action, then the EPA was directed to develop a list
of water bodies for a state and to set the TMDLs.
To implement a TMDL and achieve the water quality standard it sets, a
state can consider all water pollution sources—point sources, such as municipal sewage facilities or industrial plants; and nonpoint sources, such as
livestock feeding operations and forests (the EPA cannot deal directly with
nonpoint sources).
For two decades, the TMDL program was essentially dormant. National
and state attention centered on the development and implementation of the
technological standards. Then in 1992, recognizing that more controls on pollution were needed to attain water quality standards, the EPA issued a regulation directing states to list water bodies every two years that did not meet
water quality standards and to develop TMDLs to achieve these standards.
Dissatisfied with inaction, environmental groups filed dozens of lawsuits
to compel action. They believed that implementation of the TMDL program
would help achieve the goals of the Clean Water Act and also pressure the EPA
and the states to control nonpoint source pollution. Nonpoint sources had
become the major cause of impairment for many water bodies. Many of the
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260
6 Policy Implementation
lawsuits culminated with court orders mandating expeditious development of
TMDLs by the states or the EPA.68
The lawsuits helped goad the EPA into action, and in 1997, it called on
the states to formulate long-term plans for implementing TMDLs. As a consequence, action in some of the states began to intensify.
Then in August 1999, the EPA proposed a rule to clarify, strengthen,
and accelerate the TMDL program. Changes included requirements for
more comprehensive listing of polluted water bodies; more specification
of the content of TMDLs; a requirement that an implementation plan
be included in TMDLs; and provision of greater opportunity for public
participation. The proposed new rule attracted much opposition. States
complained about the burdens the new rule would impose on them. Farm
groups, the forestry industry, and other nonpoint dischargers questioned
the EPA’s authority to include nonpoint source pollution in the TMDL
program. Municipal and industry groups worried that their burden under
the technological standards might be further increased. Environmental
groups, which favored a stronger TMDL program, fretted about possible
delays in cleaning up impaired water bodies.
The final EPA rule was issued in July 2000. Although some provisions were
dropped, including several affecting agriculture and forestry, in all, the new
rule put more backbone in the TMDL program. However, the controversy over
the rule had attracted unfavorable congressional attention. A rider was added
to an appropriations act that prohibited the expenditure of any funds to implement the new rule until after the end of fiscal year 2001 (October 31).
The Bush administration now came to the aid of the rule’s opponents, stating that it would delay its effective date until May 2003. The administration
said it needed time to review the rule and to consider alterations. In March
2003 it withdrew the rule, stating that it was not workable without major
changes.69 A new weaker rule was given some consideration, but the ultimate
decision was to do nothing. Thus, the TMDL program continues to be administered under the 1992 rule.
In recent years, the rule-making failure aside, activity under the TMDL
programs has gained momentum. By 2008, some 34,000 TMDLs had been
developed by the states and the EPA. How effectively they are being implemented is another matter. Good information on this is hard to acquire.
There appear to be two major obstacles to a fully effective TMDL program.70 One is that good data on water quality are scarce and costly. Moreover, it is highly difficult to calculate the maximum amount of each pollutant
that can be permitted in each water body during a twenty-four hour period.71
Second, there is the matter of political will or commitment. To accomplish
its goals, the TMDL program needs political support and adequate resources
at both state and national levels. People and public officials must want clean
water and be willing to support its attainment. Some states, such as California
and New Jersey, have shown more commitment to pollution control than have
others, such as Texas and Kansas.72 ■
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Techniques of Control
261
Techniques of Control
Whether labeled promotional, regulatory, prohibitive, redistributive,
or whatever, almost all policies incorporate an element of control. That is, by
one means or another, overtly or subtly, they are designed to cause people to do
things, refrain from doing things, or continue doing things that they otherwise
would not do. This holds true whether reference is to tax provisions intended
to encourage industrial-plant modernization or charitable giving, the provision of information and financial assistance to expand international trade, or a
prohibition of an activity such as price-fixing with penalties for violators. Even
Smokey Bear’s admonition that “only you can prevent forest fires” embodies a
control element.73
The control techniques authorized for their implementation are an important component of public policies. Decisions on these matters, like those on the
substance of policy itself, can be highly productive of controversy during
the policy-adoption process. The control techniques that an agency is permitted
to use may in practice have important consequences for the content and impact of policy, for policy as an “operational reality” that affects human behavior.
Those who oppose a policy, for example, may attempt to lessen or even negate
its effects by restricting the administering agency’s powers of enforcement or
implementation. Two examples illustrate this point. In 1912, Massachusetts became the first state to enact a minimum-wage law. While strongly supported
by organized labor, it met with vigorous opposition from manufacturers.
The result was compromise legislation that provided for enforcement only by
the publication in newspapers of the names of companies not complying with
the wage standard. As one might guess, the Massachusetts law was not effective.
In the 1970s, a wave of corporate mergers led to efforts to strengthen antimerger law. After much struggle, including a Senate filibuster by opponents,
legislation was enacted providing that the Antitrust Division of the Department
of Justice had to be given advance notice of proposed large corporate mergers.
Proponents believed that this requirement would increase the effectiveness of
antitrust enforcement by enabling the government to block mergers before
they were completed and the companies involved lost their separate identities.
Opponents, notably investment bankers, who put together mergers, and others
in conservative and business ranks, apparently shared this view. Otherwise,
there would have been no controversy.
Control techniques may rely on a number of behavioral assumptions. 74
Economic incentives such as subsidies, tax credits, and loans are based on the
assumption that people are utility maximizers. Incentives to act in their own
interest will cause them to comply with policies. Capacity-enhancing techniques, such as job training, information, and counseling programs, rely on
the notion that people have the desire or motivation to do what is required but
lack the capacity to act accordingly.
Hortatory techniques—declarations of policy, appeals for voluntary cooperation, admonitions against littering or drunk driving—assume that people act
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262
6 Policy Implementation
on the basis of their beliefs or values, that they will do what is right if informed
about what is right. If one looks along roadways, however, it is quite apparent
that appeals not to be a litterbug often miss the mark. Also, let it be noted that
hortatory appeals may often be a substitute for more compelling action.
Authoritative techniques rest on the premise that requirements and restrictions, backed up by sanctions, are necessary to prevent people from engaging
in undesirable, evil, immoral, or unfair behavior. Many government agencies,
consequently, have authority to set and enforce standards on environmental
pollution, consumer safety, financial transactions, and other topics.
In sum, for a policy to be effective, more is needed than substantive
authority and sufficient funding to cover the financial costs for implementation. Adequate and suitable techniques of control and implementation must
be authorized for the responsible agency. In this section a variety of control
techniques are examined, but the list is not exhaustive.
any of the methods used to implement policies to bring
M
about compliance are noncoercive. Here, noncoercive means
that they do not involve the imposition of legal sanctions
or penalties, rewards, or deprivations. The effectiveness of these forms
depends mostly upon voluntary collaboration or acceptance by the affected
parties, although social and economic pressures arising out of society may
lend them an element of compulsion. The following are examples of noncoercive
forms of action.
Declarations of policy by themselves may cause many people to comply, “to
go along.” This result seems reasonable, especially if the declarations are made by
respected or high-status officials. Presidential appeals to labor and management
to avoid making inflationary wage contracts or price increases, for example, may
themselves have a restraining effect, as may mayoral appeals to citizens to conserve water by not watering their lawns during periods of drought.
In a book entitled Nudge, Professors Richard Thaler and Cass Sunstein argue
for what they call “libertarian paternalism.”75 Drawing on behavioral economics and psychology, they propose structuring choice situations to encourage but
not compel decisions that will make people’s lives longer, healthier, and better.
For example, a nudge would involve arranging foods in a school cafeteria to
make choosing healthy foods easier than choosing junk foods. As a second
example, Thaler and Sunstein cite the Texas Department of Transportation’s
effort to reduce littering by posting signs along highways proclaiming “Don’t
Mess with Texas.” This they label a “stunning success.” (They apparently have
not spent much time traveling in Texas.)
Voluntary standards may be established by official action. The National
Institute of Standards and Technology has developed commercial standards,
such as uniform weights, measures, and grades of products and materials,
which are not mandatory. They are widely adhered to because their use facilitates or promotes business and economic activity. While the use of most of the
standard grades—such as prime, choice, and select for beef—established by
Noncoercive
Forms of Action
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Techniques of Control
263
the U.S. Department of Agriculture for agricultural commodities is permissive
(some are mandatory for interstate commerce), they are widely followed in
practice because they facilitate trade.
Mediation and conciliation are noncoercive measures often used in efforts
to settle labor-management disputes, as by the Federal Mediation and Conciliation Service. The mediator works to bring the parties together, to clarify
the facts in the disputes and the points at issue, and to offer advice and suggestions to promote settlement. The mediator, however, has no formal powers
of decision or sanction. Many labor-management disputes are successfully resolved by these procedures.
The use of publicity to bring the social and economic effects of adverse
public opinion to bear on violators may induce compliance with policy. Much
stress was placed on “pitiless publicity” during the Progressive Era as a way of
preventing monopoly. Although labor and business organizations today exhibit
much awareness about their public image, it is impossible to measure how
effective publicity is as a control device. Still, the revelation of “poor” working conditions or “undesirable” business practices by congressional or agency
investigations may produce some correction or improvement.
Educational and demonstration programs are widely used by agencies in
securing compliance with policy. Much effort is expended to inform people
about their rights under Social Security and veterans’ benefits programs, for
example. Employers are informed through publications and conferences about the meaning and requirements of wage and hours legislation.
The demonstration technique is especially used in agriculture. Preferred
practices in soil conservation and crop production are shown and explained
to farmers with the hope that their demonstrated superiority will lead to
widespread acceptance and use.
I nspection is the examination of some matter (such as
premises, products, or records) to determine whether it
conforms to officially prescribed standards. The inspection may be either continuous, as in the inspection of meat in packing plants, or periodic, as in the
inspection of banks and food-processing establishments. Whichever form it
takes, inspection is intended to reveal compliance or noncompliance with rules
or standards by those involved in an activity, with the objective of preventing
or correcting undesirable or dangerous conditions. Typically, an effort is first
made to persuade violators to conform with the law; imposing sanctions or
penalties is a last recourse. Indeed, the ultimate purpose of inspection is to help
gain the cooperation of the regulated.
Inspection is the most commonly used form of regulatory action. Examples
of its use at the national level include the inspection of locomotives and
railroad safety devices by the Federal Railroad Administration, sanitary
conditions in food- and drug-manufacturing establishments by the FDA,
income-tax returns by the IRS, and national banks by the Comptroller of the
Currency.
Inspection
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264
6 Policy Implementation
icensing, or enabling action, as it is sometimes called, inL
volves government authorization to engage in a business
or profession or to do something otherwise forbidden. An extensively used
form of action, licensing is known by various names. Licenses are required to
engage in many professions and occupations and to do such things as operate
motor vehicles and radio stations. In addition, the term certificate of public
convenience and necessity is used in the public-utility field. Permits may be necessary to drill oil wells, the corporate charter authorizes the use of a form of
business organization, and franchises are granted to utilities to use city streets
for their pipe- and wire lines.
Licensing is a form of advance check in which a person who wishes to engage in a particular activity (such as driving a car) must demonstrate certain
qualifications or meet specified standards or requirements. The burden of
proof in securing a license rests with the applicant rather than the granting
official. The use of licensing ordinarily goes beyond the initial authorization
or denial to do something. It may also include “(1) imposition of conditions
as part of the authorization; (2) modification of the terms or conditions at the
discretion of the granting authority; (3) renewal or denial of the authorization
at periodic intervals; (4) revocation of the authorization.” When these are included, licensing becomes a form of continuing control.76 Radio and television
broadcasters, for example, must periodically renew their licenses with the FCC
and may have them revoked under specified circumstances. Only rarely, however, is an applicant’s request for a broadcast license renewal denied.77
Licensing
Loans, Subsidies, Loans, subsidies, and benefits are means by which public
purposes are advanced through aid, in the form of money
and Benefits
or other resources, to companies, farmers, students, home
buyers, and others. Under the Essential Air Service Program, cash operating
subsidies are granted to some commuter airlines to maintain an adequate system of air transport. Operating subsidies are used to promote the American merchant marine. It also benefits from the Jones Act, which provides that ocean
commerce among U.S. ports can be carried only in ships built and registered
in the United States. Commodity loans and payments are made to farmers to
support farm prices and income. Small businesses are assisted by loans from
the Small Business Administration. Also related is the guarantee of loans by
the government to expand the volume of private lending, as with the guarantee
of home mortgages by the Federal Housing Administration.
In addition to their broad control quality, loans, subsidies, and benefit programs may include explicit regulatory features. Under the agricultural incomesupport programs, commodity loans and payments are not available to those
who do not comply with various conservation requirements. Farm Service
Agency loans for purchasing farms are made under conditions designed to ensure good farm management. In effect, the government is using the loan and
benefit operations to purchase consent to policies. The effectiveness of such programs depends considerably upon the need or desire for the assistance offered.
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Techniques of Control
265
any governmental programs are carried out in substantial
M
part through contracts with private entities. At the national
level, the defense, nuclear weapons, and space programs are well-known
examples. State and local governments contract with private companies for the
construction of highways and streets and, in some instances, the management of
public schools and prisons. Many private companies looking for profits want
to do business with the government, and some, as in the aerospace industry,
depend heavily upon government contracts for their very existence. The power
to grant or deny contracts includes an obvious element of control.
Every presidential administration since Dwight Eisenhower’s has encouraged agencies to contract out commercial activities. The OMB, pursuant to
its Circular A-76, directs them to contract for goods and services when these
can be obtained at lower cost from the private sector. Implementation of A-76,
however, has varied widely among federal agencies and its cost savings are
difficult to measure.78
Contracts sometimes serve as the basis for specific economic controls. Under the Walsh-Healey Act, companies wanting to sell goods or services to the
national government must pay prevailing wages and comply with other standards
on the hours and conditions of work. Executive Order 11246, issued by President
Lyndon Johnson, prohibits discrimination in employment by federal contractors. The Office of Federal Contract Compliance programs, which administers
the order, requires that contractors also have affirmative-action programs.79
Violators of these requirements can be denied present or future government
contracts.
After its adventure in Iraq began in 2003, the United States made extensive use of contracting. The Congressional Budget Office (CBO) reports that in
2007 at least 160,000 contract personnel worked in Iraq on contracts funded
by the United States. (This was about the same as the number of military personnel.) Some of these workers were American citizens, some were Iraqis,
and some were third-country nationals. They provided personal protection for
American officials, furnished support services for the armed forces, worked
on construction and development projects, and much more. In contrast, CBO
notes that military personnel outnumbered private contractor personnel by a
seven-to-one ratio during World War II.80 Most of the contract personnel in
Iraq have now been let go. Many others remain in Afghanistan.
Contracts
part from their use in connection with the loan, subA
sidy, and benefit operations, governmental expenditures
for purchasing goods and services can be used by agency
officials to attain various policy goals. Administrative agencies often have
considerable discretion in spending funds appropriated by Congress. Expenditures
of funds for goods and services can be used to foster favored domestic or local
industries, or to increase economic activity in depressed areas. Competition
may be promoted by purchasing from smaller rather than larger businesses so
as to strengthen their economic position. The rate and timing of expenditures
General
Expenditures
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266
6 Policy Implementation
can be geared to counteract inflationary or recessionary trends in the economy. Thus, in early 2009 the Congress enacted legislation providing for several
hundred billion dollars in government spending (plus tax cuts) in an effort to
offset the severe recession afflicting the country.
hen government enters the market to buy, sell, or proW
vide goods and services, its actions often have control
effects. Thus, the purchase and sale of government
securities in the market (i.e., open-market operations) is
a potent tool used by the FRB to expand or contract the money supply in the
economy. When the FRB buys government securities, this increases bank
reserves and their lending capacity; the opposite occurs when the FRB sells
securities. The prices of some agricultural commodities, such as milk, have
been supported by direct Department of Agriculture purchases in the market.
The Clinton administration sold petroleum from the Strategic Petroleum
Reserve to counter action by the Organization of Petroleum Exporting Countries
(OPEC) to raise oil prices. Many observers, however, viewed this as symbolic.
Government enterprises also may have a control effect, as when they compete with private enterprises. Thus, the sale of electric power at “reasonable”
rates by the Tennessee Valley Authority led to rate reductions by private companies operating in the region. This is sometimes referred to as “yardstick regulation” in that the reasonableness of private utility rates can be measured by
the public rates. Governmental competition has not been used extensively as a
control device, although it remains a possibility. Some states use state-owned
liquor stores rather than regulation of privately owned stores as a means for
controlling liquor traffic.81
Market and
Proprietary
Operations
axes are important policy instruments “because they not
T
only provide revenue but also serve to sanction or encourage
certain types of behavior.”82 The power to tax has occasionally been wielded
for regulatory purposes. A 10 percent annual tax on state bank notes levied by
Congress in 1865 drove them out of existence. State banks then developed the
use of checks to replace their currency. For several decades, high taxes were
levied on colored oleomargarine to discourage its use in preference to butter.
Uncolored, oleomargarine resembles lard, something that most people do not
relish. The Carter administration proposed increasing the federal tax on gasoline as a means of discouraging its consumption and promoting energy conservation. Congress refused to act on the recommendation, however, because of
strong public opposition. This is a policy idea that will not die, however. In 1993,
a gasoline-tax increase was adopted instead of the Clinton administration’s
proposal for an energy tax.
The idea of a carbon tax to reduce energy usage, by raising the price of
gasoline, and to lessen air pollution, has been with us since the Nixon administration. Many economists are firm proponents of the idea. Although it is
good economics and would have positive consequences, in a time when tax
Taxation
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Techniques of Control
267
increases are anathema to many citizens and officials, it is bad politics. Its
near-future prospects are dim.
In recent years, some have advocated more positive use of taxation. Thus,
it has been contended that environmental pollution could be better reduced by
levying a tax on effluents rather than relying on the system of standard-setting
and enforcement.83 The tax would provide businesses with an economic incentive to reduce discharges while permitting them to determine the most efficient manner to do this. Resistance to the use of taxation in this fashion has
been based on various premises: taxes should be used only to raise revenue,
the present pattern of regulation is adequate, and the tax device would be difficult to administer in practice. As a consequence, little use has been made of
taxation as a more positive regulatory technique.
Tax Expenditures A plethora of deductions, deferrals, credits, exclusions
of income, preferential rates, and exemptions enable
individuals and corporations who engage in specified activities such as the
purchase of homes, the receipt of employer-provided health insurance (which
is equal to income), charitable giving, capital investment, the receipt of capital gains, and much more to retain money that otherwise would be paid in
taxes. They are frequently called tax expenditures.84 The effect is the same as if
the government had made direct payments to the privileged parties. But, it is
less open and obvious, and some beneficiaries may be unaware of their good
fortune. For the most part, tax expenditures are meted out through the tax
system administered by the IRS and require no special administrative apparatus. Beneficiaries claim their benefits when they file their income-tax forms.
A payer simply pays less taxes.85
The use of tax expenditures has become widespread. Some were eliminated
by the 1986 Tax Reform Act. Since then, however, many more have been added
to the U.S. Tax Code. There are hundreds of them. In 2011, they cost the government more than a trillion dollars in lost revenue.86 The three most costly
were dividends and capital gains taxed at lower rates than ordinary income,
employer contributions for health insurance, and the home mortgage interest
deduction. High-income persons, overall, benefit far more from tax expenditures than do those with lower incomes.
The tax expenditure ploy capitalizes on the general aversion to paying taxes
that appears built in to most Americans. It also reduces the visibility of government subsidies.
any agencies have authority, through the use of adjuM
dicatory proceedings, to issue orders or directives that
are binding on private parties. (In the preceding section, we discussed the process of administrative adjudication and its use in developing policy.) Agencies
may issue orders to settle disputes between private parties, as when a mover
claims that a moving company damaged or lost some of his or her furniture;
to resolve complaints, as when a company is charged with false or misleading
Directive Power
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268
6 Policy Implementation
advertising; and to approve or deny applications, as for a license for a nuclearpower project or a Social Security benefit.
Congressional standards governing administrative adjudication are usually
more specific for benefit programs, such as Social Security and veterans’ benefits, than for regulatory programs, perhaps because political conflict is often
less intense over the passage of benefit legislation than regulatory legislation.87
Consequently, Congress is less inclined to pass the buck to agencies through
the guise of general legislation on benefit programs.
any public policies, mostly of the distributive variety, inM
volve the provision of services such as information, advice,
legal counsel, medical treatment, and psychiatric services. Thus, the Small
Business Administration, in addition to making loans, administers a variety of informational and technical services for the operators of small businesses. The National Weather Service’s forecasts are useful to groups such
as farmers, commercial fishermen, and airline companies, as well as to
weekend weather watchers generally. The Department of Veterans Affairs
provides many medical, psychiatric, and counseling services to veterans,
often at no cost.
Service programs variously provide benefits to recipients or users, help
enhance the personal or material well-being of many people, and support the
more efficient operation of markets (as in job training and the provision of
foreign-trade data). Moreover, many services are intended to cause, encourage,
or enable recipients to act in preferred ways.
Services
uch of the work done by agencies in settling questions
M
involving private rights, privileges, and interests is accomplished by informal procedures—that is, without formal
action and adversary hearings. Most disputes arising out of income-tax
returns are settled by consultation and correspondence between the IRS and the
private parties involved. Claims for retirement benefits under the Social
­Security program are mostly settled by administrative officials using work
­r ecords, personal interviews, and eligibility rules. A large portion of the
­complaint cases alleging unfair labor or management practices initiated with
the NLRB are also informally disposed of in conferences between agency field
examiners and the parties in dispute.
Informal procedures have been referred to as “the lifeblood of the administrative process” because of their contributions to its efficiency and success.
Certainly they are an important facet of policy implementation. Many decisions
affecting private rights and interests are reached by such means as negotiation, bargaining and compromise, consultation, conference, correspondence,
reference to technical data, and examination of material. Extensive use is
made of such methods because of the large number of cases coming before
agencies, the need or desire for quick action, agencies’ wishes to avoid becoming
Informal
Procedures
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Techniques of Control
269
embroiled in formal proceedings, and private parties’ desires to avoid the
courthouse and unfavorable publicity.
ather than rely on mandatory government controls to
R
protect the public against some evil, voluntary regulation
would depend upon companies to regulate themselves,
to act with restraint, to reduce pollution emissions, whatever. Thus, George W.
Bush, as governor of Texas and then as president, called on public utility
companies to voluntarily reduce their emissions of carbon dioxide. In neither
case was it effective, although it did create the impression that something was
being done.
Trade or industry associations sometimes take responsibility for controlling the behavior of their members. An example is the Responsible Care program of the American chemical industry, whereby industry members agree to
comply with a set of ethical and practice guidelines. Another example involves
the EPA and the National Pork Producers Council. Under an agreement, the
Council funds certification of inspectors who can penalize participating pork
producers for Clean Water Act violations.88 Voluntary regulation can be an appealing notion, but its effectiveness is clearly questionable. It may be only a
dodge to avoid positive government action.
Voluntary
Regulation
anctions are the devices, penalties, and rewards that
S
agencies use to encourage or compel compliance.89 In the
form of penalties or deprivations, they put some sting into administrative
action. In some instances, sanctions are built into control techniques. Thus,
when an agency decides to grant or deny a conditional benefit, the sanction
rests in this action. Other sanctions that agencies may be authorized to impose
include the threat of prosecution, favorable or unfavorable publicity, modification or revocation of licenses, monetary assessments, product recalls,
seizure or destruction of goods, award of damages, and issuance of injunctions
or cease-and-desist orders.
Agencies may also seek to impose criminal penalties (fines and jail sentences), but this requires taking action through the courts. On the other hand,
agencies may be enabled to assess civil penalties for law violations. A civil penalty looks much like a fine, but it does not entail a finding of criminal guilt.
OSHA frequently levies civil penalties for violations of industrial health and
safety standards.
Sanctions
here appears to be general agreement that policies should
T
be implemented in such manner as to cause the least possible material and psychological disturbance to the persons
affected. (This generalization may not hold for some criminal laws.) Within
this constraint, the most technically or economically efficient method of enforcement may not be the most acceptable politically. This consideration will
Concluding
Comment
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270
6 Policy Implementation
influence both the legislature in authorizing control techniques for an agency
and the agency in using its techniques and sanctions.
Another consideration in choosing control techniques stems from the general objective of public policy, which is to control behavior (or secure compliance) and not to punish violators, except as a last resort. Consequently, the
usual preference will be for less harsh or coercive techniques. Some sanctions
may be considered so harsh that they are rarely used, as with jail sentences for
business executives who violate the antitrust laws. Government tends to follow
the rule of parsimony in employing legal restraint and compulsion in policy
implementation, except for some types of criminal conduct.
raditionally, economic regulatory programs have relied
T
heavily upon such administrative practices as setting standards, inspection to determine compliance, and imposing
sanctions upon violators. Following the lead of economist
Charles Schultze, however, many now designate and stigmatize this pattern of
regulation as “command-and-control” regulation. (In reality, of course, a great
deal of education, persuasion, negotiation, bargaining, and compromise goes
on in the regulatory process.) Opponents object to use of the “command-andcontrol” approach because, they say, it dictates behavior, discourages private
initiative and innovation in attaining policy goals, and causes waste or misuse
of societal resources. In its stead they prefer economic incentives in the form
of rewards or penalties, which they see as utilizing individual self-interest to
achieve public purposes. The incentive system, it is said, “lets individuals make
their own decisions, thus enhancing freedom and voluntarism, and yet (under
the right circumstances) achieves desired goals at the lowest possible cost to
society.”90
Let us take the question of how to control environmental pollution as an illustration of the incentive system because it is here that the incentive approach
has been most widely proposed. The system apparently would work like this:
First, it would be determined how much reduction in a pollutant would be
necessary to meet a policy goal. A tax or fee would then be imposed on each
unit (perhaps a ton) of the pollutant (perhaps sulfur dioxide) discharged sufficient to achieve the goal. Those discharging the pollutant could then choose
to pay the tax or lower their discharges. Ideally, they would choose the latter,
reducing their discharges, by whatever means chosen, as much as economically practicable, or to the extent that it costs less to reduce pollution than to
pay the tax. Economists Allen Kneese and Charles Schultze explain the consequences of a selected level of taxes:
A Controversy:
Standards or
Incentives?
Firms with low costs of control would remove a larger percentage [of
a pollutant] than would firms with higher costs, precisely the situation
needed to achieve a least-cost approach to reducing pollution for the
economy as a whole. Firms would tend to choose the least expensive
methods of control, whether treatment of wastes, modification in production processes, or substitution of raw materials that had less serious
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Techniques of Control
271
polluting consequences. Further, the kinds of products whose manufacture entailed a lot of pollution would become more expensive and could
carry higher prices than those that generated less, so consumers would
be induced to buy more of the latter.91
The incentive system, its supporters believe, would be easy to administer. Once the level of taxes appropriate for achieving a policy goal was
determined, it would then be a simple matter to monitor discharges and
collect the taxes due. Large bureaucracies would be unnecessary, and
political struggles would be avoided. Governmental coercion to cause compliance with standards, with all the balkiness that it creates, would give way
to choice driven by self-interest.
In practice, however, the incentive system would be unlikely to eliminate
either politics or the need for administrative agencies. Determining how much
reduction of pollution was necessary (or conversely, how clean the air should
be) and what level of taxes would be needed to achieve this goal would be open
to much disagreement, conflict, and struggle; in short, such decisions would
be highly political. Businesses would want to hold down the taxes, environmentalists would opt for higher taxes, small businesses would seek preferential treatment because it would cost them more to reduce discharges, and so
on. Administrative structures would be needed to develop studies and information for making these decisions.
Once goals and taxes were set, an agency would be needed to monitor the
discharge of pollutants (unless one was willing to trust polluters to monitor
themselves) and to collect the taxes due. The more complex and finely calibrated the structure of pollution taxes, the more complex the monitoring
program would have to be. Professor Deborah A. Stone remarks, “Where a
standard and penalty system might levy a single fee for all discharges in excess of the standard, an incentive system would vary the taxes according to
the amount of the discharges, and thus its information needs are greater than
those of a standard system.”92
Nor would the incentive system eliminate government coercion because it
consists of a control system contrived and imposed by government on economic behavior. Companies do have a choice between cleaning up or paying
up, or some combination of the two. Their real preference, however, might be
to do nothing; they are left to select from among governmentally mandated
alternatives.
A couple of other objections to the incentive system should be noted. One is
that it leaves decisions on how much to pollute to the judgment of private parties,
dictated by self-interest, and fails to stigmatize pollution as “morally wrong.”93 A
second objection is based on equity. Because of their stronger economic position,
some will be better able to pay the emission taxes and avoid restriction. In other
words, the law will bear down more heavily on some than on others.
Emissions trading (or cap and trade) is another alternative to traditional
regulation.
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272
CASE
STUDY
6 Policy Implementation
The Clean Air Act’s Emissions-Trading System
An emissions-trading system is authorized by Title IV of the
Clean Air Act Amendments (CAAA) of 1990 as part of a strategy to reduce acid rain. A mandatory limit was imposed on nationwide
emissions of sulfur dioxide, the primary precursor of acid rain, reducing
them by 10 million tons (roughly 50 percent) by the year 2000. Under
Phase I, which took effect in 1995, each of 110 electric power plants,
located mostly in the Midwest, was issued a specified number of allowables. In Phase II, which got underway in 2000, most electric utilities
were brought into the system.
An allowable entitles a utility to discharge a ton of sulfur dioxide annually.
Companies reducing their emissions below specified levels, whether by energy
conservation programs, conversion to low-sulfur fuels, or the installation of
smokestack scrubbers, can sell unneeded allowables or “bank” them for future
use. Companies that exceed their specified emission levels and that do not buy
additional allowables are subject to heavy fines. Continuous emissions monitoring enables the EPA to keep track of what the companies are doing.
The Chicago Board of Trade (CBOT), a large commodity exchange, was
authorized to create a market for the buying and selling of allowables. CBOT’s
first auction of allowables was held in March 1993. All of the allowables put
on the market by the EPA were bought; however, only a few privately offered
allowables changed hands. The prices paid were only a fraction of the costs
of meeting pollution-reduction requirements by using smokestack scrubbers.
Utility companies initially appeared wary of participation in this new market.94 The volume of allowables traded increased at the 1994 and 1995 CBOT
auctions, and prices further declined. An early study reported that “though the
auction market has been sluggish and prices have fallen short of expectations,
it appears that the intent of CAAA ’90 is working.”95 More recently, the market
for allowables has become more robust.
The sulfur dioxide emissions-trading system provides an empirical test of
the feasibility of using economic incentives to reduce pollution. Preliminary
evaluations support the conclusion that it has been fairly successful in reducing the volume of sulfur dioxide emissions. An authority on emissions trading
says that “targeted emissions reductions have been achieved and exceeded. . . .
Total abatement costs have been significantly less than what they would have
been in the absence of trading provisions.”96 Under the trading system, however, it is possible for emissions to increase in some areas even as they decline
overall, thus letting pollution “hot spots” exist.
Data provided by EPA indicate that the Acid Rain Program to reduce sulfur dioxide emissions is accomplishing its goals. Thus, a progress report for
2007 indicates that sulfur dioxide emissions from electric generating units
were 43 percent lower than at the program’s inception. Estimated public
health benefits from ARP reduction exceed program costs by more than a 40:1
ratio. Reduction in nitrogen oxide emissions, another cause of acid rain, and
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Compliance
273
were later included in ARP, also were significantly reduced.97 These reductions resulted in improved water quality in lakes and streams.
In 2005, the European Union put into place the first emissions trading program to reduce carbon dioxide emissions, a major cause of global
warming.98 It is a large program that now includes twenty-five of the
twenty-seven EU members. It got off to a rocky start. Officials initially
planned to sell permits but, because of intense industry lobbying, decided
to give most permits for free. The system was tightened after a couple of
years and fewer permits were issued, and permits gained in value on the
trading market. Nonetheless, carbon dioxide emissions rose slightly in
2006 and 2007. Leaders of the EU still hope to reduce emissions by
20 percent by 2020.
American opponents of carbon emissions regulatory program are prone
to call the European system a failure. In contrast, a careful study done by two
economists holds that the program has worked as intended. A European carbon
price has been set, businesses are taking this price into account in making decisions, and a market for trading emissions permits is in place.99
Soon after taking office, President Obama proposed an emissions trading system to reduce carbon dioxide and other greenhouse gas emissions.
Mandatory limits (caps) would be imposed on emissions and permits for
emissions would be auctioned to emitters.100 He subsequently indicated that
he would not oppose the award of some free permits. By a narrow 219 to 212
margin, with no Republican support, the House passed a bill calling for a
17 percent reduction in greenhouse gas emissions from 2005 levels by 2020
and 83 percent by 2050. It also included several energy efficiency measures.
The Senate reported a bill from committee but was unable to pass it because
the sixty votes needed to block a filibuster could not be rounded up. Global
warming dropped off of the Congressional decision agenda for the remainder of Obama’s first term. The EPA then began action to use its rule-making
authority under the Clean Air Act to restrict greenhouse gas emissions as a
threat to the public health.
Should an emissions trading scheme to control greenhouse gas emissions
be put in place sometime in the future, most of its cost likely will be passed
on to consumers in the form of higher prices. That has been the case with the
European trading system. ■
Compliance
All public policies are intended to influence or control human behavior in some way and to induce people to act in accordance with government-prescribed rules or goals, whether reference is to policy on such
diverse matters as interest rates, nighttime burglary, patents and copyrights,
open housing, agricultural production, or military recruitment. If compliance with policy is not achieved, if people continue to act in undesired ways,
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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274
6 Policy Implementation
if they do not take desired actions, or if they cease doing what is desired, to
that extent policy becomes ineffective or, at the extreme, a nullity. (Foreign
policy also depends for its effectiveness on compliance by the affected foreign countries and their officials.) To make consideration of this problem
more manageable, we focus primarily but not exclusively on compliance
with domestic economic policies.
Except perhaps for crime policies, political scientists have not given
much attention to the problem of compliance.101 This neglect may be caused
partly by our traditional legalistic approach to government, with the assumption that people have an absolute duty to obey the law. Too, those
whose aim is securing governmental action on public problems often lose
interest therein or shift their attention elsewhere once they secure the enactment of legislation. Political scientists have certainly been far more interested in the legislative and executive formulation and adoption of policy
than in its administration, which is where compliance enters the picture.
A complete study of policymaking must cover not only the events leading up
to a decision on policy but also what is done to implement it and, ultimately,
whether people comply with it.102
In this section, we examine some of the conditions affecting compliance
and noncompliance with policy, along with the role of administrative agencies
in securing compliance.103 Because empirical data are not plentiful, the discussion must be somewhat tentative.
espect for authority, including authority as expressed in
R
decisions by governmental agencies, is substantial in our
society. Contentions that Americans are a lawless people
are exaggerations and should not be permitted to obscure the favorable disposition of most people toward compliance with most public policies. Respect for
and deference to authority are built into our psychological makeup by the process of socialization. Most of us are taught from birth to respect the authority
of parents, knowledge, status, the law, and governmental officials, especially if
these forms of authority are considered reasonable. Consequently, we grow up
generally believing it to be morally right and proper to obey the law. Disobeying
the law may produce feelings of guilt or shame. Prior conditioning and force of
habit thus contribute to policy compliance.
Compliance with policy may also be based on some form of reasoned,
conscious acceptance. Even some whose immediate self-interest conflicts
with a policy may be convinced that it is reasonable, necessary, or just. Most
people undoubtedly would rather not pay taxes, and many do try to avoid or
evade their payment. But when people believe that tax laws are reasonable
and just, or perhaps that taxation is necessary to provide needed governmental services, such beliefs will in all likelihood contribute to compliance with
tax policy. Factors such as this and respect for authority clearly seem to contribute to the high degree of compliance with the national income tax in the
United States.
Causes of
Compliance
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Compliance
275
In a study of police–citizen relationships in the Chicago area, Tom Tyler
concluded that in complying with the law, people were much influenced by
“social values about what is right and proper.” He explained:
People obey the law because they believe that it is proper to do so. They
react to their experiences by evaluating their justice or injustice, and in
evaluating the justice of their experiences, they consider factors unrelated
to outcomes, such as whether they had a chance to state their case and been
treated with dignity and respect.104
This runs counter to self-interest models of compliance behavior.
Another possible cause of compliance is the belief that a governmental decision or policy should be obeyed because it is legitimate, in the sense that
it is constitutional, or was made by officials with proper authority to act, or
that correct procedures were followed in its development. People would be less
inclined to accept judicial decisions as legitimate if the courts utilized decisionmaking procedures akin to those of legislatures. Courts gain legitimacy and
acceptance for their decisions by acting as courts are supposed to act. Some
people in the South were willing to comply with the Supreme Court’s 1954
school desegregation decision because they considered it legitimate and within
the Court’s competence, even though they disagreed with its substance.
Self-interest can be an important consideration in compliance under some
circumstances. Individuals and groups may directly benefit from accepting
policy norms and standards. Thus, farmers for decades complied with production limitations in the form of acreage allotments, marketing quotas, and
set-asides in order to qualify for price supports and deficiency payments. Securities regulation is accepted by responsible members of the securities business
as a way of protecting themselves and the reputation of their business against
unethical practices by some wayward dealers. Businesses engage in industrialplant modernization in order to receive investment tax credits. Compliance
thus results because private interests and policy prescriptions are harmonious,
a fact sometimes ignored. That is, compliance may yield monetary rewards.
This arrangement, though, is not likely to occur outside the economic-policy
area.
Any legislation, such as a minimum-wage law or an occupational-safety
law, has more than simply supporters and opponents. Rather, many points of
view will surround it, ranging from strong support through indifference to intense opposition. A sizable proportion of the population will often be indifferent or neutral toward the legislation, if indeed they feel affected by it at all.
This group, given the general predisposition toward obedience, would seem
especially subject to the authority of the law. Here, in effect, the law becomes a
“self-fulfilling prophecy”; by its very existence, it operates to create a climate of
opinion conducive to compliance.
The possibility of punishment in the form of fines, jail sentences, and other
penalties may also contribute to compliance. “Classical deterrence theory assumes that individuals respond to the severity, certainty, and celerity [speed]
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276
6 Policy Implementation
of punishment,” state political scientists Anne Schneider and Helen Ingram,
“and in this respect it implies that individuals are utility maximizers.”105 The
threat or imposition of sanctions alone, however, is not always sufficient, even
though the likelihood of their use is overestimated. “The strong disposition
in this country to believe that any behavior can be controlled by threatening
punishment has filled American statute books with hundreds of unenforced
and unenforceable laws.”106 Experience with national prohibition, World War
II price and rationing controls, many Sunday “blue laws,” highway speed limits, and penalties for using marijuana shows that the threat of punishment is
not always sufficient to induce general compliance with policies.
Although many people may comply with policies because they fear punishment, the main function of sanctions is to reinforce and supplement other
causes of compliance. Policies depend greatly for their effectiveness upon voluntary or noncoerced compliance because those responsible for implementation cannot effectively handle and apply sanctions in large numbers of cases.
Moreover, widespread penalization might not be politically acceptable.
The IRS would find itself at an impasse, for example, if several million people decided not to file tax returns because the effectiveness of the income tax
depends upon self-administration and voluntary compliance. As it is, the IRS
director has estimated that the underreporting of income and the fabrication
of deductions cost the Treasury $250 billion annually.107 Audits of tax returns
decreased in recent years because of cuts in the IRS budget and its chariness
in enforcement activity resulting from the 1998 reform legislation.108 An opinion survey found that 76 percent of Americans believed that tax cheating was
unacceptable behavior, down from 87 percent in 1999.109 To counter a feared
epidemic in tax cheating, the IRS hired hundreds of tax-collection agents and examiners and stepped up the frequency of taxpayer audits. Shifting course from a
few years earlier, when it complained about IRS abuses of taxpayers, the Senate
Finance Committee now urged the agency to crack down on tax cheats.110
In many instances, sanctions are effective more because people desire to
avoid being stigmatized as lawbreakers than because they fear the possible
penalties. In criminal proceedings for antitrust violations, the fines levied usually have been quite nominal, considering the violators’ economic resources.
Not until 1961 did a businessman actually spend time in jail for an antitrust
violation, although this punishment had been possible since the Sherman Act
was adopted in 1890. The real deterrent in these cases is probably the adverse
publicity that flows from the proceedings.
In recent years, Antitrust Division officials have been successfully advocating harsher penalties for antitrust violators, especially jail sentences, to
encourage compliance. Legislators and judges, however, remain somewhat reluctant to create or impose jail sentences and other severe penalties on business people because of their social status and because of the often diffuse and
complex nature of such law violations as embezzlement and the misuse of “insider information” in stock deals. In other situations, sanctions may be more
severe and certain and have a more powerful deterrent effect.
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Compliance
277
Finally, acceptance of most policies seems to increase with the length of time
they are in effect. As time passes (and it always does) a once-controversial policy
becomes more familiar, part of the accepted state of things, a condition of doing
business. Further, more and more persons come under the policy who have no
experience with the prepolicy situation. Because “freedom is (in part) a state of
mind, such men feel the restrictions to rest more lightly upon them.”111
Although at one time business interests found the Wagner Act of 1935
highly objectionable, and the Taft-Hartley Act of 1947 was bitterly opposed by
labor unions, today these statutes have lost much of their controversial quality. They have become a fixed part of the environment of labor–management
relations, and businesses and labor unions have “learned to live with them.”
Predictably, environmental pollution-control policies will seem less restrictive
or intrusive in a decade or two than they do at present.
ven to the most casual observer, it is readily apparent
E
that not all persons affected by public policies comply
with them. Statistical information on reported violations is
readily obtainable, as in the Federal Bureau of Investigation’s Uniform Crime
Reports. In addition, lots of law violations go undetected or unreported. Why
do some people, or in some situations many people, deviate from officially prescribed norms of behavior? As the obverse of compliance, noncompliance may
result when laws conflict too sharply with the prevailing values, mores, and
beliefs of the people generally or of particular groups. Many of the extensive
violations of national prohibition and wartime price and rationing controls
can be attributed in considerable measure to this cause, as may much of the
noncompliance in the South with the Supreme Court’s school desegregation
decisions and related policies. In such instances, the general predisposition to
obey the law is outweighed by strong attachment to strongly held values and
established practices.
It is not very useful, however, to ascribe noncompliance to a broad conflict
between law and morality. Those who proclaim that “you can’t legislate morality” not only oversimplify the situation but also ignore the fact that morality is
frequently legislated with considerable success. (Those who make this contention often cite national prohibition in its support.) Failure to comply results
when a law or set of laws conflicts with values or beliefs in a particular time
and situation. This law–value conflict must be stated with fair precision if it is
to have operational value in explaining noncompliance.
Thus, quite a bit of noncompliance has confronted the Supreme Court’s
1962 decision in Engel v. Vitale that using officially required prayers, even
those that were thought nondenominational, in the public schools violated
the First and Fourteenth Amendments’ prohibition of the establishment of
religion.112 All efforts to legally circumvent this decision have failed.113 The
­Supreme Court stirred the fire again in 2000 when, in a Texas case, it upheld
an appeals-court ruling that banned religious invocations at public high school
football games.114 In a very different area of human activity, opinion surveys
Causes of
Noncompliance
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278
6 Policy Implementation
indicate that tax evasion is commonest among persons who do not believe that
the federal tax system is fair in its effect.115
The concept of selective disobedience of the law is closely related to the
law–value conflict.116 Some laws are thought to be less binding than others on
the individual. Those who strongly support and obey the statutes ordinarily
labeled criminal laws sometimes have a more relaxed or permissive attitude
toward economic regulatory legislation and laws on the conduct of public
officials. Here one can aptly reflect on the behavior of Vice President Spiro T.
Agnew, a staunch advocate of “law and order,” who resigned his position
after pleading nolo contendere (following plea bargaining) to a charge of federal
income-tax evasion. Likewise, many businesspeople apparently believe that
laws relating to banking operations, insider stock trading, competitive trade
practices, and environmental pollution are not as compelling for individuals
as laws prohibiting robbery, burglary, and embezzlement. This attitude may
be common partly because legislation controlling economic activity developed
later than criminal laws and has yet to gain the same moral force.
Moreover, much economic legislation runs counter to the ideological
belief in limited nonintervention by government in the economy held by many
people in business. They regard it as “bad law.” Also, the same degree of social
stigma usually is not attached to violations of economic policies as to criminal
law offenses. Sociologist Marshall B. Clinard writes, “This selection of obedience to law rests upon the principle that what the person may be doing is
illegal, perhaps even unethical, but certainly not criminal.”117
One’s associates and group memberships may also contribute to noncompliance (or, under other conditions, to compliance). Association with persons
who hold ideas disrespectful of law and government, who justify or rationalize
violation of the law or who openly violate the law may cause people to acquire
deviant norms and values that dispose them to noncompliance.
In a study of labor-relations policy, Professor Robert E. Lane found that the
rate of law violations varied with the community in which the firms studied
were located. It was “fairly conclusive” that one reason for these patterns of
difference was the “difference in attitude toward the law, the government, and
the morality of illegality. Plant managers stated that they followed community
patterns of behavior in their labor-relations activities.”118
Similarly, attorneys for some of the defendant executives in the great
electrical-industry price-fixing conspiracy late in the 1950s—which involved
dozens of companies, including some of the largest in the industry—attempted
to explain and justify their actions, hoping to lessen their punishment, as
being in accord with the “corporate way of life.”119 The scandals that occurred
in the savings and loan business in the 1980s and early 1990s indicate that
such attitudes persist.
The desire to make a fast buck, or something akin thereto, is often proposed as a cause of noncompliance. This claim certainly seems applicable to
many instances of fraud and misrepresentation, such as short-weighting and
passing one product off for another in retail sales, promotion of shady land
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Compliance
279
sales and investment schemes, failure to comply with minimum-wage laws,120
and price-fixing agreements. (Price-fixing continues to be the most obvious
and the commonest violation of the Sherman Act.) It is really not possible,
however, to determine how widespread greed is as a motive for noncompliance. By itself it often seems insufficient as an explanation.
If two companies have equal opportunities to profit by violating the law,
and one violates the law but the other does not, what is the explanation? One
answer may be that companies that are less profitable or in danger of failure
are more likely to violate in an effort to survive than are more financially secure firms.121 One should be careful, however, in attributing noncompliance
to pecuniary motives. Many violations of labor–management relations policy
stem from a desire to protect management’s prerogatives, and noncompliance
with some industrial health and safety standards may rest on the conviction
that they are unnecessary or unworkable.
Noncompliance may also stem from such factors as ambiguity in the law,
lack of clarity, conflicting policy standards, or failure to adequately transmit
policies to those affected by them. Income-tax violations often arise from the
ambiguity or complexity of provisions of the Internal Revenue Code, which
someone once described as a “sustained essay in obscurity.” In other instances,
persons or companies may believe that a practice is not prohibited by law, only
to find upon prosecution that it is. The explanation may be that the frames of
reference of businesspeople and public officials are different; thus, each interprets the law differently.
Violations sometimes result from difficulty in complying with the law, even
when its meaning is understood. Insufficient time may be allowed for filing
complicated forms or for making required changes in patterns of action, as in
installing pollution-control devices. Sheer ignorance of laws or rules regulating conduct also cannot be discounted as a cause of noncompliance. Though
ignorance of the law may be no excuse, it does account for some violations.
In sum, noncompliance may stem from structural defects in the law and its
administration, and from ignorance and lack of understanding of the law, as
well as from behavior that is more consciously or deliberately deviant.
Administration The burden of securing compliance with public policies
and Compliance rests primarily with administrative agencies; the courts
play a lesser role. The broad purpose of many administrative
enforcement activities, such as conferences, persuasion, inspection, and prosecution, is to secure compliance with policies rather than merely to punish
violators. Conscious human behavior involves making choices among alternatives, deciding to do some things and not others. For purposes of discussion,
we can assume that there are essentially three ways in which administrative
agencies, or other governmental bodies that engage in implementing public
policy, can influence people to act in the desired ways, selecting behavioral
alternatives that result in compliance with policy. First, to achieve a desired
result, agencies can strive to shape, alter, or utilize the values people employ in
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280
6 Policy Implementation
making choices. Educational and persuasional activities illustrate this type of
activity. Second, agencies can seek to limit the acceptable choices available to
people, as by attaching penalties to undesired alternatives and rewards or benefits to desired alternatives. Third, agencies can try to interpret and administer policies in ways designed to facilitate compliance with their requirements.
Thus, time limits for compliance were extended to give automobile manufacturers more time to meet tailpipe emission standards. More than one of these
alternatives are normally used in seeking compliance with a policy.
Administrative agencies engage in many educational and persuasional
activities intended to convince those directly affected, and the public generally, that designated public policies are reasonable, necessary, socially
beneficial, or legitimate, in addition to informing them of the existence
and meaning of those policies. The effectiveness of public policies depends
considerably on the ability of agencies to promote understanding and
consent, thereby reducing violations and minimizing use of sanctions. This
approach is in keeping with my earlier comment on the importance of voluntary compliance.
When changes are made in the coverage and level of the federal minimumwage law, the Department of Labor seeks to acquaint the public, and especially
employers and employees, about them and their implications by distributing
explanatory bulletins, reference guides, and posters; announcements through
the news media; meetings with affected groups; appearances at conventions;
direct mailings; telephone calls; and the like. After the changes become effective, press releases and mailed materials provide information on enforcement
activities and agency interpretations of the law. The Federal Deposit Insurance
Corporation likewise relies heavily on advice and warnings to banks, based on
inspections, to get them to bring their operations into accord with banking
regulations. Formal proceedings are initiated only when persuasion appears
ineffective. The Nuclear Regulatory Commission typically compiles a technicalassistance manual to assist the operators of nuclear-power plants in complying
with new regulations.122
Agencies may also use propaganda appeals in support of compliance. (Propaganda is used here not in a pejorative sense but rather to denote efforts to
gain acceptance of policies by identifying them with widely held values and
beliefs.) Appeals to patriotism were used to win support and acceptance of
the military draft. Agricultural programs have been depicted as necessary to
ensure equality for agriculture and to help preserve the family farm as a way
of life. Antitrust programs have been described as necessary to maintain our
system of free competitive enterprise. The Forest Service utilizes Smokey Bear
to tell us that “only you can prevent forest fires.” Propaganda appeals are more
emotional than rational. They can be viewed as attempts either to reduce the
moral cost of adapting to a policy or to make compliance desirable by attaching positive values to policies.123
In administering policies, agencies may make modifications in policies
or adopt practices that will contribute to compliance. Revealed inequities in
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Compliance
281
the law may be reduced or eliminated, conflicts in policy standards may be
resolved, or simplified procedures for compliance may be developed, such as
simplified federal income-tax forms for lower-income earners. Administrative
personnel may develop knowledge and skill in enforcing policy that enables
them to reduce misunderstanding and antagonism. Consultation and advice
may be used to help those affected by laws come into compliance without
issuing citations.
Laws may be interpreted or applied to make them more compatible with the
interests of those affected. The administration of policy on oil-import controls
by the Oil Import Administration “was almost wholly in the interests of the
petroleum industry.”124 They had little cause for complaint. Several hundred
of the health and safety “consensus” standards initially issued by OSHA were
later rescinded because of widespread complaints that they were outmoded,
trivial, or of little use in protecting against health and safety hazards.125 OSHA
hoped thereby to reduce the antagonism of the business community toward
itself by eliminating those standards.
Agencies will resort to sanctions when the sociological and psychological
factors supporting obedience and other available methods fail to produce compliance. Sanctions are penalties or deprivations imposed on those who violate
policy norms and are intended to make undesired behavior patterns unattractive. They directly punish violators and serve to deter others who might not
comply if they saw violators go unpunished.
Sanctions can be imposed by either administrative agencies or the courts.
Common forms of judicial sanctions are fines, jail sentences, award of damages, and injunctions. However, in most areas of public policy (crime policy is
a major exception), administrative sanctions are used much more frequently
because of their greater immediacy, variety, and flexibility. Among the sanctions that agencies may impose are threat of prosecution; imposition of fines
or pecuniary penalties that have the effect of fines, as by OSHA; unfavorable
publicity; revocation, annulment, modification, or suspension of, or refusal to
renew, licenses; summary seizure and destruction of goods; award of damages;
issuance of cease-and-desist orders; and denial of services or benefits.
To be most effective, the severity of sanctions must be geared to the violations
against which they are directed. If they are too severe, the agency may be reluctant
to use them; if they are too mild, they may have inadequate deterrent effect, as is
the case with minimal fines often imposed by national and state agencies for pollution violations. In many instances, when fines are assessed, they are less than
the economic benefits realized by the violators.126 The Office of Education was
handicapped in its early administration of Title I of the ESEA because the only
sanction it had for state and local violations was to cut off funds totally. Because
of the adverse reaction this penalty would have caused, the agency was politically
reluctant to impose the penalty and chose not to do so. Agencies clearly need appropriate and effective sanctions to help ensure compliance with policy.
Agencies may also seek to induce compliance by conferring positive benefits
on compliers and thereby bringing self-interest into support for compliance. This
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282
6 Policy Implementation
method can be referred to as the purchase of consent. Benefits may take such
forms as favorable publicity and recognition for nondiscrimination in hiring, tax
credits for industrial-plant modernization, and federal grants-in-aid for the support of state programs of medical aid to the indigent that meet federal standards.
It is often difficult, however, to distinguish rewards from sanctions. Does
an individual comply with a policy to secure a benefit or to avoid losing it?
Whatever the motives of persons seeking benefits, the government does use
rewards extensively to gain compliance with policy. In many situations they
are much more acceptable politically than would be a clear-cut prohibition or
requirement of some action with penalties for noncompliance. Imagine the reaction if rather than using tax credits, businesses were required to modernize
their plants or else be subject to fines and other penalties.
Clearly, then, compliance—or noncompliance—with public policies is a
function of many factors. It is a complex topic that needs more explicit attention from policy analysts because of its importance for the implementation
and effectiveness of public policies.
For Further
Exploration
❚ http://www.gpo.gov
This site contains links to issues of the Federal Register published since
1995, the Code of Federal Regulations, public laws, and administrative
decisions.
❚ http://www.osha.gov/index.html
The Occupational Safety & Health Administration’s (OSHA) official
website provides information in relation to workplace health and safety
issues, and a collection of statistical data related to topics such as inspections and workplace safety.
❚ http://www.whitehouse.gov/
This site provides numerous links related to the executive branch, including a link to presidential press briefings, radio addresses, and executive orders issued by the President.
Test Your
Knowledge
Log on to the student companion website at
login.cengage.com
to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary
flashcards that review chapter concepts and terminology.
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Notes
283
Suggested
Readings
Cornelius M. Kerwin and Scott R. Furlong, Rulemaking: How Government
Agencies Write Law and Make Policy, 4th ed. (Washington, DC: CQ Press,
2010). Thorough, readable, and replete with examples, Their book
discusses the politics and process of federal rule-making.
Denise Scheberle, Federalism and Environmental Policy, 2nd ed.
(Washington, DC: Georgetown University Press, 2004). An analysis of
federal-state relations and what shapes them in some areas of environmental policy.
Dennis D. Riley and Bryan E. Brophy-Baerman, Bureaucracy and the Policy
Process (Lanham, MD: Rowman and Littlefield, 2006). This text provides
a thorough, in-depth, and readable look at the national bureaucracy’s role
in policymaking.
Francis E. Rourke, Bureaucracy, Politics and Public Policy, 3rd ed. (Boston,
MA: Little Brown, 1984). This volume retains its usefulness as an examination of administrative agencies and their power, politics, and role in
policy formation.
Ken Godwin, Scott H. Ainsworth, and Erik Godwin, Lobbying and Policymaking
(Washington, DC: CQ Press, 2013). The authors provide an excellent empirical and theoretically guided look at lobbying, which is expecially valuable on
regulatory agencies.
Kenneth J. Meier and John Bohte, Politics and the Bureaucracy: Policymaking in
the Fourth Branch of Government, 5th ed. (New York: Harcourt Brace, 2006).
A comprehensive and systematic treatment of the national bureaucracy as a
policymaking organization, this book deals with structure power, politics,
and policy.
Paul C. Light, A Government Ill Executed (Cambridge, MA: Harvard
University Press, 2008). A master student of the federal bureaucracy,
drawing on Federalist Paper #70, examines its decline and what can be
done about it.
Philip B. Heymann, Living the Policy Process (New York: Oxford University
Press, 2008). An outstanding treatment, utilizing case studies and more,
of policymaking and implementation.
notes
1. Peter C. Bishop and Augustus J. Jones Jr., “Implementing the Americans with
Disabilities Act of 1990: Assessing the Variables of Success,” Public Administration
Review, Vol. 53 (March–April 1993), pp. 121–128.
2. Cf. Randall B. Ripley and Grace A. Franklin, Policy Implementation and Bureaucracy,
2nd ed. (Chicago, IL: Dorsey, 1986), pp. 4–5.
3. Charles S. Bullock III and Charles M. Lamb, eds., Implementation of Civil Rights
(Monterey, CA: Brooks/Cole, 1984), p. 5.
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the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to
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284
6 Policy Implementation
4. Those political scientists interested in the government regulation of business had
long been concerned with the implementation because of its policy consequences.
See Emmette S. Redford, The Administration of National Economic Control (New
York: Macmillan, 1952); and Marver H. Bernstein, Regulatory Business by Independent Commission (Princeton, NJ: Princeton University Press, 1955).
5. Jeffrey L. Pressman and Aaron Wildavsky, Implementation (Berkeley, CA: University of California Press, 1973). The book’s subtitle is “How Great Expectations in
Washington Are Dashed in Oakland: Or, Why It Is Amazing that Federal Programs
Work at All, This Being a Saga of the Economic Development Administration as
Told by Two Sympathetic Observers Who Seek to Build Morals on a Foundation of
Ruined Hopes.”
6. Representative studies of implementation include Eugene Bardach, The Implementation Game: What Happens after a Bill Becomes Law? (Cambridge, MA: MIT Press,
1977); David A. Mazmanian and Paul A. Sabatier, Implementation and Public Policy
(Chicago: Scott, Foresman, 1983); Malcolm L. Goggin, Policy Design and the Politics of Implementation (Knoxville, TN: University of Tennessee Press, 1987); and
Bradley C. Canon and Charles A. Johnson, Judicial Policies: Implementation and
Impact, 2nd ed. (Washington, DC: CQ Press, 1999).
7. Paul A. Sabatier, “Top-Down and Bottom-Up Models of Policy Implementation:
A Critical Analysis and Suggested Synthesis,” Journal of Public Policy, Vol. 6 (1986),
pp. 21–48.
8. Denise Scheberle, Federalism and Environmental Policy, 2nd ed. (Washington, DC:
Georgetown University Press, 2004), well illustrates this.
9. Paul Berman, “The Study of Macro- and Micro-Implementation,” Public Policy,
Vol. 26 (Spring 1978), pp. 157–184.
10. Barry G. Rabe, “Power of the States: The Promise and Pitfalls of Decentralization,”
in Norman J. Vig and Michael E. Kraft, eds., Environmental Policy, 6th ed.
(Washington, DC: CQ Press, 2006), pp. 49–50.
11. This account relies on Michael Kirst and Richard Jong, “The Utility of a Longitudinal Approach in Assessing Implementation: A Thirteen-Year View of Title I, ESEA,”
in Walter K. Williams et al., eds., Studying Implementation (Chatham, NJ: Chatham
House, 1982), chap. 6; and June A. O’Neil and Margaret C. Simms, “Education,” in
John L. Palmer and Isabel C. Sawhill, eds., The Reagan Experiment (Washington,
DC: Urban Institute, 1982), Chap. 11.
12. Andrew Rudalevige, “The Politics of No Child Left Behind,” Education Next, Vol. 3
(Fall 2003), pp. 62–69.
13. Brian Friel, “Damage Control for ‘No Child Left Behind,’ ” National Journal, Vol. 36
(June 5, 2004), pp. 1786–1787; and Chester E. Finn Jr. and Frederick M. Hess, “On
Leaving No Child Behind,” The Public Interest, No. 157 (Fall 2004), pp. 35–56.
14. Bryan Shelly, “Rebels and Their Cause: State Resistance to No Child Left Behind,”
Publius, Vol. 38 (Summer 2008), pp. 444–468.
15. Scott Franklin Abernathy, No Child Left Behind and the Public Schools (Ann Arbor, MI:
University of Michigan Press, 2007), esp. Chaps. 1, 2; and The New York Times (June
12, 2008), pp. Al, A21.
16. Charles T. Goodsell, The Case for Bureaucracy, 4th ed. (Chatham, NJ: Chatham
House, 2003), Chap. 1.
17. See Harold Lasswell, Politics: Who Gets What, When, and How (New York:
McGraw Hill, 1936).
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Notes
285
18. Frank Goodnow, Politics and Administration (New York: Russell and Russell,
1900).
19. Martha Derthick, Agency under Stress: The Social Security Administration in
American Government (Washington, DC: Brookings Institution, 1990); and Susan
Gluck Mezey, “Policy-making by the Federal Judiciary: The Effects of Judicial
Review on the Social Security Disability Program,” Policy Studies Journal, Vol. 14
(March 1986), pp. 343–355.
20. George C. Edwards III and Stephen J. Wayne, Presidential Leadership, 6th ed.
(Belmont, CA: Wadsworth, 2003), pp. 287–288.
21. See James E. Anderson, “Presidential Management of the Bureaucracy and the
Johnson Presidency: A Preliminary Exploration,” Congress & the Presidency,
Vol. 1 (Autumn 1984), pp. 137–164; and David M. Welborn, Regulation in the White
House: The Johnson Presidency (Austin, TX: University of Texas Press, 1986).
22. Peter Baker, “For Obama, a Tricky Balancing Act in Enforcing a Law He Viewed as
Invalid,” The New York Times (March 29, 2013), p. A17.
23. Robert Diclerico, The Contemporary American President (Boston, MA: Pearson,
2013), pp. 221–233.
24. Jonathan Weisman, “Congress and Country Fired Up after Hearings on IRS
Abuses,” Congressional Quarterly Weekly Report, Vol. 55 (October 4, 1997),
pp. 2379–2384.
25. Wall Street Journal (December 9, 1999), p. A28; The New York Times (August 15,
2000), p. 1.
26. The New York Times (March 31, 1989), p. 8.
27. Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed.
(Lawrence, KS: University Press of Kansas, 1997), p. 157.
28. Leroy N. Reiselbach, Congressional Politics: Evolving Legislative System, 2nd ed.
(Boulder, CO: Westview, 1995), pp. 400–405.
29. David T. Stanley and Marjorie Girth, Bankruptcy: Problems, Process, Reform
(Washington, DC: Brookings Institution, 1971), p. 172.
30. Adarand Constructors v. Pena (1995). Reported in The New York Times (June 13,
1995), p. A8.
31. See Samuel P. Huntington, “The Marasmus of the ICC: The Commission, the
Railroads, and the Public Interest,” Yale Law Journal, LXI (1952), pp. 470–509.
32. This discussion draws on Harold Seidman, Politics, Position, and Power, 5th ed.
(New York: Oxford University Press, 1999), pp. 197–202. See also General Accounting Office, Federal Advisory Committee Act (Washington, DC: USGAO, October
1988).
33. Kay Lehman Scholzman and John T. Tierney, Organized Interests and American
Democracy (New York: Harper & Row, 1986), p. 334.
34. Sheila Jasanoff, The Fifth Branch: Science Advisers as Policy-makers (Cambridge, MA:
Harvard University Press, 1990), pp. 65–66.
35. James W. Davis Jr. and Kenneth M. Dolbeare, Little Groups of Neighbors: The Selective
Service System (Chicago: Markham, 1968).
36. CQ Weekly, Vol. 59 (February 3, 2001), pp. 283–285; and Vol. 60 (November 2, 2002),
pp. 2861–2863.
37. Seidman, op. cit., pp. 12–13.
38. Paul C. Light, Thickening Government (Washington, DC: Brookings Institution,
1995).
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6 Policy Implementation
39. This account draws on Charles Noble, Liberalism at Work: The Rise and Fall of
OSHA (Philadelphia, PA: Temple University Press, 1986), pp. 89–95.
40. This discussion draws some ideas from my Politics and the Economy (Boston, MA:
Little, Brown, 1966), pp. 86–90.
41. Wall Street Journal (August 10, 1989), p. 1; and The New York Times (August 13,
1993), p. 1.
42. Cf. Matthew Holden Jr., “ ‘Imperialism’ in Bureaucracy,” American Political Science
Review, LX (December 1966), pp. 943–951. This is a seminal article.
43. Richard Tobin, The Expendable Future (Durham, NC: Duke University Press, 1990),
p. 98.
44. Interview with the author.
45. Holden, op. cit., p. 944.
46. Daniel McCool, Command of the Waters (Berkeley, CA: University of California
Press, 1987), Chap. 2.
47. This discussion, and that in the first part of the next section, draws on Francis E.
Rourke, Bureaucracy, Politics and Public Policy, 3rd ed. (Boston, MA: Little, Brown,
1984), Chaps. 4–5.
48. Ibid., pp. 106–107.
49. Ibid., p. 108.
50. On the separation of the ability to decide from the authority to decide in organizations, see Victor Thompson, Modern Organizations (New York: Knopf, 1961). See
also James G. March, A Primer of Decision Making (New York: Free Press, 1994).
51. Theodore C. Sorensen, Kennedy (New York: Harper & Row, 1965), Chap. 25. On
secrecy in administration generally, see Harold L. Wilensky, Organizational Intelligence (New York: Basic Books, 1967), Chaps. 3 and 7; and Symposium on “The
Freedom of Information Act,” Public Administration Review, XXXIX (July–August
1979), pp. 310–332.
52. See James A. Nathan and James K. Oliver, Foreign Policy Making and the American
Political System, 3rd ed. (Baltimore, MD: Johns Hopkins University Press, 1994).
53. Rourke, op. cit., p. 108.
54. This story is told well by Richard E. Neustadt and Harvey V. Finebert, The Swine
Flu Affair (Washington, DC: U.S. Department of Health, Education, and Welfare,
1978).
55. Stephanie Ann Lenway, The Politics of U.S. International Trade (Marshfield, MA:
Pitman, 1985).
56. Florence Heffron, with Neil McFreely, The Administrative Regulatory Process (New
York: Longman, 1983), pp. 226–235.
57. Cornelius M. Kerwin, Rule-Making: How Government Agencies Write Law and Make
Policy, 3rd ed. (Washington, DC: CQ Press, 2003), pp. 89–90.
58. Heffron, op. cit., p. 239.
59. Kerwin, op. cit., pp. 63–67.
60. Ibid., p. 111.
61. Heffron, op. cit., pp. 227–230.
62. Clayton R. Koppes, “Public Water, Private Land: Origins of the Acreage Limitation
Controversy,” Pacific Historical Review, Vol. 47 (November 1978), pp. 607–636.
63. Congressional Record, Vol. 149 (January 7, 2003), pp. 551–552; and Doug French,
“Water Is Gold,” Liberty Watch Magazine (November 8, 2007). www.lewrockwell
.com/french/french64.html.
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Notes
287
64. A cease-and-desist order is an agency’s civil directive to stop engaging in a practice
held to be in violation of the law. Agencies such as the Federal Trade Commission
and the NLRB are authorized to issue such orders.
65. Chuck McCutcheon, “Nuclear Waste Issue as Hot as Ever Despite Senate OK of
Nevada Site,” CQ Weekly, Vol. 60 (July 13, 2002), pp. 1880–1881.
66. Matthew L. Wald, “Future Dim for Nuclear Waste Repository,” The New York Times
(March 6, 2009), p. A17.
67. This discussion draws on Claudia Copeland, “Clean Water Act and Total Maximum
Daily Loads (TMDLs) of Pollutants” (Washington, DC: Congressional Research
Service, August 25, 2008).
68. Mark R. Powell, Science at EPA (Washington, DC: Resources for the Future, 1999),
pp. 334–335.
69. Federal Register, Vol. 68 (March 19, 2003), p. 13608.
70. See Oliver A. Houck, The Clean Water Act TMDL Program: Law, Policy, and Implementation, 2nd ed. (Washington, DC: Island Press, 2002).
71. Walter A. Rosenbaum, Environmental Politics and Policy, 7th ed. (Washington, DC:
CQ Press, 2008), p. 204.
72. James P. Lester, ed., Environmental Politics and Policy: Theories and Evidence, 2nd
ed. (Durham, NC: Duke University Press, 1995), Chap. 3.
73. “Smokey Bear at 50: Still Going Strong,” National Woodlands, Vol. 17 (April 1994),
pp. 16–19.
74. This paragraph draws on Ann Schneider and Helen Ingram, “Behavioral Assumptions of Policy Tools,” Journal of Politics, Vol. 52 (May 1990), pp. 510–529. See
also their Policy Design for Democracy (Lawrence, KS: University Press of Kansas,
1997), Chap. 4.
75 Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health,
Wealth, and Happiness (New Haven, CT: Yale University Press, 2008).
76. Emmette A. Redford, The Administration of National Economic Control (New York:
Macmillan, 1952), p. 104.
77. Stephen Breyer, Regulation and Its Reform (Cambridge, MA: Harvard University
Press, 1982), pp. 90–95.
78. Donald K. Kettle, Sharing Power: Governance and Private Markets (Washington, DC:
Brookings Institution, 1993), Chap. 3.
79. John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice
in America (Chicago, IL: University of Chicago Press, 1996), pp. 133–134.
80. Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq
(Washington, DC: Government Printing Office, August 2008).
81. Kenneth J. Meier, The Politics of Sin: Drugs, Alcohol, and Public Policy (Armonk, NY:
M.E. Sharpe, 1994), Chap. 5.
82. Daniel P. Franklin, Making Ends Meet: Congress Budgeting in the Age of Deficits
(Washington, DC: Congressional Quarterly Press, 1993), p. 23.
83. Charles Schultze, The Public Use of Private Interests (Washington, DC: Brookings
Institution, 1977).
84. Paul R. McDaniel, “Tax Expenditures as Tools of Government Action,” in Lester M.
Salamon, ed., Beyond Privatization: The Tools of Government Action (Washington, DC:
Urban Institute, 1989), Chap. 6.
85. Christopher Howard, “Tax Expenditures,” in Lester M. Salamon, ed., The Tools of
Government (New York: Oxford University Press, 2002), Chap. 13.
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288
6 Policy Implementation
86.Budget of the United States Government Fiscal Year 2006, Analytical Perspectives
(Washington, DC: Government Printing Office, 2014); The New York Times
(March 15, 2013), p. A1.
87.Peter Woll, American Bureaucracy, 2nd ed. (New York: Norton, 1977), p. 95.
88.Peter S. May, “Social Regulation,” in Lester M. Salamon, ed., The Tools of Government (New York: Oxford University Press, 2002), Chap. 5.
89.Martin C. Schnitzer, Contemporary Government and Business Relations, 4th ed.
(Boston, MA: Houghton Mifflin, 1990), p. 242.
90.This discussion draws on Deborah A. Stone, Policy Paradox and Political Reason
(Glenview, IL: Scott, Foresman, 1988), p. 225; and Schultze, op. cit.
91.Allen Kneese and Charles Schultze, Pollution Prices and Public Policy (Washington, DC:
Brookings Institution, 1975), p. 89.
92. Stone, op. cit., p. 228.
93.Michael D. Reagan, Regulation: The Politics of Policy (Boston, MA: Little, Brown,
1987), p. 142. See also Steven Kelman, What Price Incentives? Economists and the
Environment (Boston: Auburn House, 1981), pp. 27–28.
94.The New York Times (April 8, 1993), p. C2; and Illinois Agri-News (April 9, 1993),
p. C7.
95.“Project Regulatory Reform: A Survey of the Impact of Reregulation and Deregulation on Selected Industries and Sectors,” Administrative Law Review, Vol. 47
(Fall 1995), p. 476.
96.Robert N. Stavins, “What Can We Learn from the Grand Policy Experiment?
Lessons from S02 Allowance Trading,” Journal of Economic Perspectives, Vol. 12
(Summer 1998), p. 71. See also Richard Schmalensee et al., “An Interim Evaluation of Sulphur Dioxide Emissions Trading,” Journal of Economic Perspectives,
Vol. 12 (Summer 1998), pp. 53–68; and J. Clarence Davies and Jan Mazurek,
Pollution Control in the United States (Washington, DC: Resources for the Future,
1998), pp. 140–141.
97.“Acid Rain Program 2007 Progress Report” (Washington, DC: Environmental
Protection Agency, January, 2009), pp. 1–2.
98.James Kanter and Jad Mouawad, “Pipe Dreams and Politics,” The New York Times
(December 11, 2008), p. B1.
99. A. Denny Ellerman and Paul L. Jaskow, The European Union’s Emissions Trading
System in Perspective (Arlington, VA: Pew Center on Global Climate Change,
May 2008).
100.John M. Broder, “Obama’s Greenhouse Gas Gamble,” The New York Times
(February 28, 2009), p. A15.
101.Two exceptions are Kenneth J. Meier and David R. Morgan, “Citizen Compliance
with Public Policy: The National Maximum Speed Law,” Western Political Quarterly, XXXV (June 1982), pp. 258–273; and John T. Scholz and Neil Pinney, “Duty,
Fear, and Tax Compliance: The Heuristic Basis of Citizen Behavior,” American
Journal of Political Science, Vol. 39 (May 1995), pp. 490–512.
102.R. Kent Weaver, “Forget Compliance: The Final Frontier of Policy Implementation,” Issues in Governance Studies (Washington, DC: Brookings Institution,
September, 2009), pp. 1–11.
103.This discussion draws on ideas in my “Public Economic Policy and the Problems
of Compliance: Notes for Research,” Houston Law Review, IV (Spring-Summer
1966), pp. 62–72.
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Notes
289
104.Tom R. Tyler, Why People Obey the Law (New Haven, CT: Yale University Press,
1996), p. 178.
105.Anne Schneider and Helen Ingram, “Behavioral Theories in Policy Designs.”
Unpublished paper presented at the Midwest Political Association meeting (1989).
106.Herbert A. Simon, Donald Smithburg, and Victor Thompson, Public Administration
(New York: Knopf, 1950), p. 479.
107.Los Angeles Times (March 1, 2002), part 3, p. 1.
108.David Cay Johnston, “Fearing for Jobs, I.R.S. Workers Relax Efforts to Get
Unpaid Taxes,” The New York Times (May 18, 1999), pp. A1, C11. See also his
Perfectly Legal (New York: Portfolio, 2003), Chaps. 10 and 11.
109.Newsday (January 22, 2002), p. A26.
110.John D. McKinnon, “IRS Rides the Ups and Downs of Congressional Whims,”
Wall Street Journal (April 8, 2002), p. A28.
111.Robert Lane, The Regulation of Businessmen (New Haven, CT: Yale University
Press, 1954), pp. 69–70.
112.370 U.S. 421 (1962).
113.See John A. Murley, “School Prayer: Free Exercise of Religion or Establishment
of Religion,” in Raymond Tatalovich and Byron W Daynes, eds., Social Regulatory
Policy (Boulder, CO: Westview Press, 1989), Chap. 1.
114.Santa Fe Independent School District v. Doe, 530 U.S. 1 (2000).
115.Timothy B. Clark, “Honesty May Become the Best Tax Policy If Tax Compliance
Bill Becomes Law,” National Journal, Vol. 14 (July 24, 1982), pp. 1292–1296.
116.Marshall B. Clinard, Sociology of Deviant Behavior (New York: Holt, Rinehart and
Winston, 1957), pp. 168–171.
117. Ibid.
118.Robert E. Lane, “Why Business Men Violate the Law,” Journal of Criminal Law,
Criminology, and Police Science, XLIV (1953), pp. 151, 154 –160.
119.John G. Fuller, The Gentlemen Conspirators: The Story of the Price-Fixers in the
Electrical Industry (New York: Grove Press, 1962), pp. 88, 109–110.
120.G. Pascal Zachary, “The Minimum Wage Law Is Frequently Ignored in Some Industries,” Wall Street Journal (May 20, 1996), p. 1. See also idem., “Many Firms Refuse
to Pay Overtime, Employees Complain,” Wall Street Journal (June 24, 1996), p. 1.
121. Lane, op. cit., chap. 5.
122. Kerwin, op. cit., p. 81.
123. Simon, Smithburg, and Thompson, op. cit., p. 457.
124.Roger G. Noll, Reforming Regulation (Washington, DC: Brookings Institution,
1971), p. 65.
125.Wall Street Journal (May 19, 1977), p. 40; and Timothy B. Clark, “What’s All the
Uproar Over OSHA’s Nit-Picking Rules?” National Journal, Vol. 10 (October 7,
1978), pp. 1594–1596.
126.General Accounting Office, Environmental Enforcement: Penalties May Not
Recover Economic Benefits Gained by Violators (Washington, DC: USGAO, June
1991), pp. 5–10; and, generally, Marc Allen Eisner, Governing the Environment
(Boulder, CO: Lynne Rienner, 2007).
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7
Policy Impact, Evaluation,
and Change
W
hen it is viewed as a cycle or sequential pattern of functional activities,
the final phase of the policy process is evaluation. As much an art as a
science, policy evaluation involves the estimation, appraisal, or assessment of
a policy, its content, implementation, goal attainment, and other effects. The
policy evaluator wants to know whether and to what extent a policy has accomplished its goals or whether it has had other effects, intended or unintended.
Policy evaluation may also seek to identify factors that contributed to the
success or failure of a policy. This, in turn, may lead to recycling of the policy
process (problem definition, formulation, adoption, and so on) in order to continue, modify, strengthen, or terminate the policy. Put differently, information
gained through evaluation feeds back into the ongoing policy process.
As a functional activity, evaluation can occur at any point in the policy process, not simply after some effort has been made to implement a policy. Thus,
attempts are made to determine prospectively—to estimate or predict—the
likely effects, or the costs and benefits, of policy alternatives prior to their adoption. Typically, however, policy evaluation “looks backward” to what has happened whereas the other stages of the policy process look forward to attaining
a goal.1
Before proceeding further in examining evaluation, we need to pause and
look at policy impacts, at the general sorts of effects or consequences that may
ensue from policies.
Policy Impact
To begin, we need to distinguish policy outputs and policy outcomes.
Policy outputs are the things actually done by agencies in pursuance of policy
decisions and statements. The concept of outputs focuses attention on such
matters as amounts of taxes collected, miles of highways built, welfare benefits
paid, price-fixing agreements prosecuted, traffic fines collected, or foreign-aid
290
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Policy Impact
291
projects undertaken. Outputs usually can be readily counted, totaled, and statistically analyzed. Examining outputs may indicate, or seem to indicate, that
a lot is being done to implement a policy. Such activity, however, sometimes
amounts to nothing more than what Professor William T. Gormley Jr. calls
“bean counting.” Agencies, under pressure from legislators, interest groups,
and others to demonstrate results, “may focus on outputs, not outcomes, in order to generate statistics that create the illusion of progress.”2 If the percentage
of students graduating from universities in a state increases, does this tell us
anything about the quality of education that they are receiving?
Policy outcomes (sometimes called “results”), in contrast, are the consequences for society, intended and unintended, that stem from deliberate
governmental action or inaction. Social-welfare policies can be used to illustrate this concept. It is fairly easy to measure welfare-policy outputs such as
amounts of benefits paid, average level of benefits, and number of people assisted. But what are the outcomes, or societal consequences, of these actions?
Do they increase personal security and contentment? Do they reduce individual initiative? Did Aid to Families with Dependent Children, now Temporary
Assistance to Needy Families (TANF), have the effect of encouraging promiscuity and illegitimacy, or teenage pregnancies, as some alleged? Do welfare
programs help keep the poor quiescent, as others contend?3 Questions such
as these, which are tough to answer, direct our attention to the societal effects
of policies. Among other things, policy students should want to know whether
policies are accomplishing their intended purposes, whether society is changing as a consequence of policy actions and not because of other factors such as
private economic decisions, and whether it is changing as intended or in other
ways. Policy impacts are an amalgam of outputs and outcomes.
The impact of a policy may have several dimensions, all of which should be
taken into account either in the conduct of a formal evaluation or in the course
of an informal appraisal of the policy.4 They include the following:
1. Policies affect the public problem at which they are directed and
the people involved. The target populations whom the policy is intended to
affect must be defined, whether they are the poor, small-business people,
disadvantaged schoolchildren, petroleum producers, or whoever. The intended
effect of the policy must then be determined. If it is an antipoverty program, is
its purpose to raise the income of the poor, to increase their opportunities for
employment, or to change their attitudes and behavior? If some combination
of such purposes is intended, analysis becomes more complicated because
priorities should be assigned to the various intended effects. Typically, policies
accomplish at least a portion of their goals or objectives.
Further, a policy may produce either intended or unintended (unforeseen
or unplanned) consequences, or even both. Unemployment compensation
may improve the economic situation of the unemployed, as designed by its
proponents, but it may also cause them to delay in finding new jobs. A publichousing program may improve housing conditions for urban blacks, but it may
also be so administered as to contribute to racial segregation in housing and
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292
7 Policy Impact, Evaluation, and Change
neighborhood schools. The agricultural income and price support programs,
intended to enhance farmers’ incomes, also may lead to overproduction
of supported commodities (only a few such as corn, wheat, and cotton are
covered), to higher food prices, and to unearned increases in land values.
The causes of unintended policy consequences are multiple: the complexity
of the issue being addressed; insufficient information on which to ground a
decision; pressure to act quickly on a matter; too little consultation with other
legislators or affected persons; partisan pressures and the politicization of
issues; and, finally, human error. Also, statutory language needs mention. A
law may be clumsily drafted, or too detailed, or too vague, and thus permit
unintended interpretations.5
A good illustration of a policy with negative unintended consequences
was financial deregulation (or nonregulation). The Financial Services
Modernization Act (1999) permitted banks to combine commercial banking
(deposits and loans), investment banking, and insurance services. Huge
banking conglomerates developed, some of which became viewed as “too big
to fail” because of their potential effects on the economy. The Commodity
Futures Modernization Act (2000), which was slipped into a huge omnibus
appropriations bill and enacted with no debate, prohibited regulation of credit
default swaps (don’t ask) and other financial derivatives. These statutes, and
decisions by regulatory officials not to use the authority they did possess,
because of a belief in self-regulating markets, contributed greatly to the near
financial collapse of the American economy and the Great Recession.6
2. Policies may affect situations or groups other than those at which
they are directed. These are variously called third-party effects, spillover
effects, or externalities.7 The construction of urban interstate highways is of
much benefit to motorists and trucking companies. However, they also cause
inconvenience, disorder, and social disruption for the neighborhoods through
which they run, and they have helped produce urban sprawl. Clear-cutting in
national forests, which is of benefit to timber companies and in line with the
perspective of those who view forests as tree farms, is profoundly disturbing to
environmentalists, nature lovers, and many sportsmen and women because it
results in the destruction of wildlife habitat, the loss of aesthetic value, and the
siltation of trout streams.
These two examples portray negative externalities, but externalities may
also be positive. Public-education programs not only educate students but
also provide employers with a more capable workforce and the community
with better-informed citizens. A strong line of research supports a correlation
between education and support for democracy. Those who contend that only
those who have children in public schools should contribute toward their
support ignore such positive externalities. Although pollution-control programs
impose costs on many industries, they are a boon to the manufacturers of
pollution-control equipment. Many of the outcomes of public policies can be
most meaningfully understood as externalities that impose costs or provide
benefits for third parties.
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Policy Impact
293
3. Policies have consequences for future as well as current conditions; for
some policies most of their benefits or some of their costs may occur in the
far future. Was the Head Start program—a preschool education program for
the poor—supposed to improve participating children’s short-term cognitive
abilities or their long-range development and earning capacity? Did regulation
of the field price of natural gas, a policy initiated in the 1950s and extending
into the 1980s, really produce a shortage of gas in the 1970s, as some contended
(notably petroleum-industry officials and their supporters, who had long been
critics of price regulation)? Are we better off under deregulation?
The future effects of some policies may be very diffuse or uncertain.
Assuming that patent and copyright policies do indeed stimulate invention
and creativity, and that these activities in turn enhance economic growth and
societal development, how does one measure their benefits, either qualitatively
or quantitatively? Again, how does one appraise (with reasonable objectivity)
the effects of the National Foundation on the Arts and the Humanities’ support
for literacy, artistic, and museum activities? Would the elimination of such
policies as these have deleterious consequences for American society?
4. Just as policies have positive effects or benefits, they also entail costs.
Economists seem never to tire of telling us that there is no such thing as a free
lunch. Costs come in different forms. First, there are the direct costs for the
governmental implementation of a policy or program. These are usually fairly
easy to calculate, whether stated as the actual amount of money spent on the
program, its share of total governmental expenditures, or the proportion of
the gross domestic product devoted to it. Budgeting documents will yield such
figures. If, however, a governmental expenditure serves multiple purposes,
such as operating the space program and developing new technology, the
allocation of costs becomes more perplexing.
Direct costs also include private expenditures that are necessary in order
to comply with public policies, such as those for industrial health and safety
and environmental-pollution controls. These may be more difficult to discover
or calculate. Moreover, it is possible that some companies would have installed
protective devices in the absence of policy, whether out of a desire to serve
the public interest or to protect themselves from lawsuits. Should their costs
then be assigned to the policy? In the absence of governmental subsidies,
the direct costs of complying with regulatory policies initially fall primarily
on the regulated, who have an ideological incentive to inflate claimed costs,
deliberately making the policies appear more burdensome. Ultimately, of
course, most compliance costs are likely to be shifted to consumers in the form
of higher prices for goods and services.
This brings us to indirect costs. Public policies may cause reduced
production, higher prices, or mental anguish or distress. Expenditures to meet
coal-mine-safety requirements may cause a reduction in mine ou